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Docket No. 93178-Agenda 22-September 2002.

In re LEONARD THOMAS TIMPONE, Attorney, Respondent.

Opinion filed January 23, 2004.
 

JUSTICE FREEMAN delivered the opinion of the court:

Respondent, Leonard Thomas Timpone, was charged withvarious violations of the Rules of Professional Conduct (Rules) (134Ill. 2d R. 1.1 et seq.) in a three-count complaint filed by theAdministrator of the Attorney Registration and DisciplinaryCommission (ARDC). The Hearing Board found that theAdministrator established that respondent: (1) entered into a businesstransaction with a client without making proper disclosures; (2)converted and commingled funds belonging to another client; and (3)engaged in conduct involving fraud, dishonesty, deceit ormisrepresentation. The Hearing Board recommended disbarment as asanction. The Review Board affirmed those findings and rejectedrespondent's plea for a lesser sanction. The matter is now before thiscourt on respondent's exceptions to the findings and conclusions ofthe Review Board.

I. BACKGROUND

Respondent has been licensed to practice law since 1970. In1993, we suspended him for three years. See In re Timpone, 157 Ill.2d 178 (1993). The charges in the matter before us now are based ontransactions involving two clients, Richard Rzewnicki and FultonPurnell. We will discuss the facts relating to each client in turn.

A. The Rzewnicki Transactions

In count I of the complaint the Administrator alleged thatrespondent engaged in several ethical violations arising from a loantransaction between respondent and Rzewnicki. Among other things,the Administrator alleged that respondent: (1) engaged in conductinvolving fraud, dishonesty, deceit, or misrepresentation (134 Ill. 2dR. 8.4(a)(4)); (2) entered into a business transaction with a clientwithout making proper disclosures where the lawyer and client haveconflicting interests and the client expects the lawyer to exercise hisprofessional judgment on the client's behalf (134 Ill. 2d R. 1.8); and(3) engaged in conduct "which tends to defeat the administration ofjustice or to bring the courts or the legal profession into disrepute" inviolation of Supreme Court Rule 771 (134 Ill. 2d R. 771).

Respondent represented Rzewnicki in a dissolution of marriageproceeding from 1980 through 1983 and assisted him in the sale of hismarital residence in 1987 and 1988. Respondent performed no furtherlegal work for Rzewnicki until 1992, when he defended Rzewnicki ona DUI charge and a building code violation.

Approximately two months after the sale of the marital residence,Rzewnicki loaned respondent $35,000 from the proceeds of the sale.The loan was never repaid, and in January 1999, Rzewnicki obtaineda default judgment against respondent. The judgment remainsunsatisfied.

Rzewniki claimed that he loaned the money to respondentbecause he trusted respondent as "his lawyer," and because he wastold he would receive a good return. However, in a pretrialdeposition, Rzewniki described the services respondent performed forhim in December of 1988 by testifying that he was an "ex-client" andthat "[he] had nothing binding at that time."

Respondent argued before the Hearing Board that he andRzewnicki did not have an attorney-client relationship at the time inquestion, and that the loan agreement arose out of their friendshiprather than the relation of attorney and client. Therefore, although adebtor-creditor relationship existed with Rzewnicki, his receipt of theloan did not violate any of the provisions of the Rules. The HearingBoard disagreed.

Relying on the reasoning in In re Imming, 131 Ill. 2d 239 (1989),the Hearing Board found that respondent and Rzewnicki had anattorney-client relationship at the time of the loan. The Hearing Boardalso found that respondent violated his fiduciary duty to his client by,among other things: (1) failing to advise Rzewnicki that there werelimits on the types of transactions an attorney could enter into with aclient; (2) failing to advise him to consult independent counsel beforemaking the loan; and (3) providing no collateral for the loan andgiving Rzewnicki no promissory note evidencing the loan or theinterest rate until five years after the transaction. The Review Boardnoted that respondent did not challenge any of the factual findings ofthe Hearing Board and affirmed all of those findings.

B. The Purnell Transactions

Counts II and III of the Administrator's complaint involverespondent's representation of Fulton Purnell and statements made tothe ARDC regarding that representation. In count II, theAdministrator alleged that respondent: (1) converted his client'sfunds; (2) failed to hold his client's property separate from his own(134 Ill. 2d R. 1.15(a)); and (3) failed to promptly deliver funds to aclient (134 Ill. 2d R. 1.15(b)). In count III, the Administrator allegedthat respondent: (1) made a statement of material fact known by thelawyer to be false in connection with a lawyer disciplinary matter (134Ill. 2d R. 8.1(a)(1)); and (2) induced another to engage in conductwhen the lawyer knows that the conduct will violate the Rules ofProfessional Conduct (134 Ill. 2d R. 8.4(a)(4)). Regarding bothcounts II and III, the Administrator alleged that respondent engagedin conduct involving fraud, dishonesty, deceit, or misrepresentation,in violation of Rule 8.4(a)(4), and also engaged in conduct "whichtends to defeat the administration of justice or to bring the courts orthe legal profession into disrepute" in violation of Supreme CourtRule 771. The Hearing Board's findings on these allegations are notchallenged by respondent.

Fulton Purnell engaged respondent to represent him in aproceeding to set aside a judgment-by-confession taken against himby Leo Hickman. He was referred to respondent by a mutual friend,John Jordan, who had been represented in the past by respondent.

According to respondent, he expended considerable time andeffort in his attempt to set aside the Hickman judgment-by-confession.In September, 1998, respondent received a check for $23,448.94made out to Purnell in settlement of the Hickman case. This checkwas deposited in respondent's client fees account on September 21,1998. The check was endorsed, "Fulton Purnell Pay to LeonardTimpone." The handwriting was identified by respondent's associate,Gail Golub, as that of Gina Biers, respondent's secretary.

Respondent did not have a trust account at the time he depositedPurnell's check. He maintained a client fees account and an operatingaccount at the same bank and money would be transferred from thefees account to the operating account as checks were written on theoperating account. Respondent's firm did not have a client trustaccount until 1999.

Respondent testified that he, Jordan, and Purnell had a three-waytelephone conversation in the early fall of 1998, at the time of a visitby Purnell to Jordan's home. According to respondent, Purnellauthorized him to sign his name to the settlement check and deduct hisfee. This account was confirmed by Jordan, but denied by Purnell.Purnell denied ever having a three-way telephone conversation withrespondent and Jordan and denied authorizing respondent to sign hisname to the check and deduct his fees.

In September 1998, Purnell received a letter from respondentenclosing a check for $10,742.19. The letter stated that he hadreceived $23,448.94 in the Hickman matter and had deducted thebalance of almost $12,000 in attorney fees.

Before Purnell cashed the $10,742.19 check from respondent, thebalance in respondent's client fees account fell under $10,000 on atleast three occasions. Respondent denied using Purnell's funds for hisown purposes.

In early November 1998, respondent received a letter from theARDC, requesting a response to allegations raised by Purnell as to thehandling of the Hickman settlement check. At respondent's direction,Golub wrote to the Administrator's counsel on his behalf, stating, "Asfor Mr. Purnell's settlement of funds, the entirety of the settlementremains in our client trust account." On January 6, 1999, also atrespondent's direction, Golub again wrote to the Administrator'scounsel, advising, "As I stated in an earlier letter to your office,however, the entirety of the [Hickman settlement] check remains inour client fees account."

Based on this testimony, the Hearing Board found thatrespondent had converted Purnell's funds, as charged in thecomplaint. The Board, citing In re Clayter, 78 Ill. 2d 276, 282 (1980),noted that a conversion occurs any time an account holding funds onbehalf of a client drops below the sums due the client, even if the dropin the balance happens inadvertently. The Hearing Board also foundPurnell's testimony that he never gave respondent authority tonegotiate the settlement check more credible than the version ofevents given by respondent. The Board similarly found thatrespondent failed to hold property of a client separate from his ownproperty in violation of Rule 1.15(a).

The Hearing Board likewise found that respondent violated Rule1.15(b) by failing to promptly deliver to Purnell funds that Purnell wasentitled to receive. The Board found that he was not entitled to deductthose funds from the Hickman settlement proceeds without a feeagreement, regardless of whether he was still owed fees for thecompleted work. Without an agreement, respondent had engaged inconduct involving fraud, dishonesty, deceit, or misrepresentation andconduct "which tends to defeat the administration of justice or bringthe courts or the legal profession into disrepute." 134 Ill. 2d R. 771.The Hearing Board also noted that, although respondent was censuredin 1994 for failure to timely file a tax return, he had not yet filed areturn for 1998.

As to count III, the Hearing Board found that the chargedconduct had been proved because the two letters in response to theARDC inquiry, prepared at the direction and with the approval ofrespondent, contained false statements known by him to be false. Hedid not have a client trust account, as stated in the first letter, and the"entirety" of Purnell's settlement check did not remain in his account,as stated in the second letter.

Respondent did not challenge any of these findings andconclusions in his exceptions to the Hearing Board'srecommendations. The findings were, accordingly, affirmed by theReview Board. The Boards' findings as to the allegations in counts IIand III are likewise not challenged in this court.

C. Evidence in Aggravation and Mitigation

The Hearing Board noted that respondent had been disciplined ontwo prior occasions. This court suspended him for three years in 1993for misconduct including conversion and commingling of client funds,failing to maintain complete records of client funds, neglecting clientcases, hiding assets from the court, and misrepresenting a matter tothe ARDC. In re Timpone, 157 Ill. 2d 178 (1993). In 1994, he wascensured for failure to timely file tax returns for the years 1984through 1988. In re Timpone, M.R. 9862 (March 30, 1994). Relyingon In re Levin, 101 Ill. 2d 535, 541-42 (1984), the Hearing Boardconsidered the similarities between respondent's prior and currentmisconduct and the length of time between the prior and current acts.

The Hearing Board also considered in aggravation the fact thatrespondent never repaid the loan to Rzewnicki, despite the fact thathe earned significant income in the years between the loan in 1988 andhis suspension in 1993. Relying on In re Smith, 75 Ill. 2d 134, 142(1979), the Hearing Board found respondent's lack of candor andremorse to be an aggravating factor. The Board noted that throughoutthe course of the disciplinary hearing, respondent justified andminimized his actions rather than accepting responsibility for them.

In mitigation, respondent testified that he engaged in communityservice work and that he took cases for people who could not pay hisfees. He also stated that had "learned his lesson" from failing todocument his transactions with Purnell. Golub testified that at the timeof the disciplinary hearing, respondent's firm had one "official" probono case and 10 to 20 "unofficial" pro bono cases where the firmwas working for reduced rates in order to provide low-income peoplewith representation in domestic relations cases. The Hearing Boardfound this testimony to be essentially self-serving and insufficient towarrant substantial consideration as evidence in mitigation. TheHearing Board recommended disbarment.

Before the Review Board, respondent challenged the disbarmentrecommendation on the ground that the Hearing Board over-emphasized the prior discipline. The Review Board rejected thatargument, observing that the type of misconduct proved in this caseis serious and, in the absence of any aggravating or mitigating factors,would likely warrant a sanction ranging from a lengthy suspension todisbarment. The Review Board concluded that the timing of thepresent misconduct, occurring on the heels of the prior suspension,respondent's lack of candor or remorse, and his continued taxviolations despite prior discipline indicate that a lengthy suspensionwould not induce respondent to rehabilitate himself. Therefore, theReview Board affirmed the findings and conclusions of the HearingBoard and recommended disbarment.

Before this court, respondent argues that the Rzewnickitransaction should not be considered because an attorney-clientrelationship did not exist at the time of the loan. He also argues thata lengthy suspension would be the appropriate sanction for the Purnelltransaction.

II. ANALYSIS

The rules controlling our review of the reports andrecommendations of both the Hearing Board and the Review Boardare well established. The Administrator bears the burden of provingthe allegations contained within the complaint by clear and convincingevidence. 137 Ill. 2d R. 758(b); 166 Ill. 2d R. 753(c)(6). Moreover,the findings of fact made by the Hearing Board are to be treatedvirtually the same as the findings of any initial trier of fact. In reParker, 149 Ill. 2d 222, 233 (1992). Deference is to be accorded tothe factual findings of the Hearing Board because the Hearing Boardis in a position to observe the witnesses' demeanor, judge theircredibility, and resolve conflicting testimony. In re Spak, 188 Ill. 2d53, 66 (1999). Accordingly, this court will generally not disturb theBoard's factual findings unless they are against the manifest weight ofthe evidence. In re Ushijima, 119 Ill. 2d 51, 56-57 (1987). We arenot, however, bound by the disciplinary recommendations of either theHearing Board or the Review Board because those recommendationsare advisory and the ultimate responsibility for imposing disciplinerests with this court. In re Eckberg, 192 Ill. 2d 70, 85 (2000); In reHoward, 188 Ill. 2d 423, 434 (1999).

A. Count I: Improper Business Transaction

Respondent submits that the conclusion of the Hearing Board, asaffirmed by the Reviewing Board, i.e., that an attorney-clientrelationship existed at the time of the loans, was against the manifestweight of the evidence. Respondent notes that the Hearing Boardexpressly stated that "no violation of attorney disciplinary rules wouldbe at issue here if respondent entered into a business transaction withRzewnicki based upon Rzewnicki's personal friendship withrespondent rather than the attorney-client relationship." Thus, if theHearing Board's determination that an attorney-client relationshipexisted at the time of the loan transaction is against the manifestweight of the evidence, the Rule violations alleged in count I of thecomplaint were not proved. See In re Smith, 168 Ill. 2d 269, 283(1995).

The Administrator, citing Attorney Registration and DisciplinaryCommission Rule 302(f)(5), initially asserts that respondent'sargument concerning the existence of an attorney-client relationshiphas been waived since it was not expressly argued before the ReviewBoard. Rule 302(f)(5) is similar to Supreme Court Rule 341(e)(7)(177 Ill 2d R. 341(e)(7)), providing that the appellant's brief to theReview Board must include a section entitled "Argument," containingthe contentions of the party and the reasons therefor, and warns thatpoints not argued are waived. In his brief before the Review Board,respondent essentially contended that the Hearing Board had over-emphasized respondent's prior discipline and argued that asuspension, rather than disbarment, would be the appropriate sanction.According to the Administrator, respondent's brief contained nospecific argument that the Hearing Board erred in finding that anattorney-client relationship existed between respondent andRzewnicki.

Respondent's brief before the Review Board did, however,contain the following contentions:

"Thus we emphasize the following evidentiary facts, asreported by the hearing Board:

1. Though Leonard had represented Richard Rzewnickibefore and after his marital home was sold, he did notrepresent him when the home was sold in late 1988.

2. Leonard did not represent Rzewnicki in any pendinglegal matter when Rzewnicki loaned him money, whichderived from the sale of the home."

Respondent argued before the Review Board that Rzewnickidescribed himself as an ex-client at the time the loan was made, andpointed out that there was a gap of over four years between the timerespondent completed the post-decree work in 1988 and hisrepresentation of Rzewnicki on the DUI and building code violationcases in 1992-93. Thus, although not precisely characterized as apoint relied on for reversal, it is clear that respondent disputed theHearing Board's analysis and conclusion that the loan occurred duringthe attorney-client relationship.

It is well established that the rule of waiver is a limitation onparties and not on reviewing courts. Welch v. Johnson, 147 Ill. 2d 40,48 (1992). To reach a just result, this court may overrideconsiderations of waiver and consider a point not raised below.Welch, 147 Ill. 2d at 48. Under the circumstances presented by therecord in this case, we decline to apply waiver and will considerrespondent's argument on its merits.

Turning to the merits of the argument, the Hearing Board foundthat respondent was not performing any legal services for Rzewnickiat the exact time the loan transaction took place. However, this courthas established that, while an attorney's relation to a client generallyceases on completion and satisfaction of the matter the attorney wasemployed to conduct, special circumstances or arrangements mayshow a continuation of the relationship. Imming, 131 Ill. 2d at 252.The Hearing Board found that such special circumstances existedhere. The Review Board affirmed this finding.

The special circumstances found by the Hearing Board in thiscase were as follows: (1) Rzewnicki stated emphatically and withouthesitation that he considered respondent to be his lawyer, not hisfriend; (2) the loan transaction took place, upon the request ofrespondent, within weeks of respondent's completion of work on apost-decree matter that generated the funds; and (3) Rzewnickitestified that the funds loaned to respondent were generated by thework respondent performed on his behalf.

The Hearing Board found the relationship of Rzewnicki andrespondent to be analogous to the eight creditors and the attorneydisciplined in Imming. In that case, the respondent was disciplined forbreach of his fiduciary duties to eight investors who were, at the timeof the investments, either clients or former clients. Imming, 131 Ill. 2dat 253. The Imming court held that the Hearing Board couldreasonably have concluded that in the case of four of the investors, thefunds in question were the product of respondent's legal work thatwas concluded so close in time to the legal services rendered as toinduce the client to believe that respondent's business transactionswere a continuation of the attorney-client relationship. Imming, 131Ill. 2d at 254. In the case of the other four investors, respondent wasperforming legal services for them at the time of the loan or shortlyafterward. Imming, 131 Ill. 2d at 253.

While we believe that some differences exist between the facts ofthe present case and the facts in Imming, we do not believe thosedifferences compel a conclusion opposite to that made by the HearingBoard. We further acknowledge that Rzewnicki's sworn testimonywas at odds with his deposition. However, credibility determinationsrest with the Hearing Board. We cannot say that the findings made bythe Hearing Board were against the manifest weight of the evidence.We therefore affirm the findings made by the Hearing Board withrespect to the Rzewenicki transactions.

B. Appropriate Sanction

As previously noted, respondent does not challenge the boards'factual findings as to the allegations in counts II and III. We thereforeturn to the issue of the appropriate discipline to be imposed in thiscase. Supreme Court Rule 771 addresses the types of disciplineattorneys may be subjected to in Illinois. 134 Ill. 2d R. 771. Thesanctions range from the severest, disbarment, to the most lenient,reprimand. See 134 Ill. 2d R. 771.

Respondent argues that suspension, not disbarment, is theappropriate sanction for his misconduct. Although we agree thatdisbarment is not appropriate in this case, we disagree that a meresuspension in justified under the facts.

This court has described disbarment as "the utter destruction ofan attorney's professional life, his character and his livelihood andtherefore a court should use disbarment in moderation." In reYamaguchi, 118 Ill. 2d 417, 428-29 (1987).

Initially, we note that this court has imposed a lesser sanctionthan disbarment in cases involving transactions similar to those in thecase before us. In Imming, discussed earlier, a two-year suspensionwas imposed for improper business transactions with clients. Imming,131 Ill. 2d at 261. Similarly, a two-year suspension was imposed forsimilar misconduct in In re Rosin, 118 Ill. 2d 365 (1987). In In reJoyce, 133 Ill. 2d 16, 32 (1989), we likewise imposed a two-yearsuspension for commingling and conversion of client funds. Inrespondent's earlier disciplinary matter, we imposed a three-yearsuspension for similar misconduct involving six different clients.Timpone, 157 Ill. 2d at 200.

The Review Board noted that the type of conduct at issue in thiscase likely warrants a sanction ranging from a lengthy suspension todisbarment. Of these cases cited by the Review Board in its writtendecision, we find distinguishable those where disbarment was ordered.In each of those cases, certain aggravation existed which is notablyabsent in the case at bar. See In re Feldman, 89 Ill. 2d 7 (1982)(ordering disbarment for intentional misconduct, including convertinga client's funds then wrongfully signing another client's name onchecks to cover up the first conversion); In re Stillo, 68 Ill. 2d 49(1977) (ordering disbarment for breach of attorney-client relationshipto obtain loan from client which was never repaid in addition tosettling a case with the client's consent, and converting client funds).

The Administrator argues that our holding in In re Blank, 145 Ill.2d 534 (1991), strongly supports the boards' recommendations. Inthat case, the respondent was found to have neglected three clients'cases, engaged in dishonesty, and converted funds on two occasionswhen he allowed his trust account balance to fall to zero while he wassupposed to be holding money for a medical provider. The HearingBoard and the Review Board recommended a two-year suspension.Blank, 145 Ill. 2d at 537. This court imposed disbarment, citing thegravity of the misconduct and respondent's recidivism. Blank, 145 Ill.2d at 554-55.

We agree with the Administrator that respondent's recidivism isa factor that cannot be ignored in this case. However, in In reHoward, 188 Ill. 2d 423 (1999), we imposed a two-year suspensionon a lawyer who had been reprimanded for neglecting criminal cases,who was later suspended for two additional years for misconductincluding conversion of client funds, and whose name had beenstricken from the roll of attorneys practicing before the SeventhCircuit Court of Appeals. Despite his suspension, he continued topractice law and submitted false information to an Alaskan courtwhere he applied for admission pro hac vice. Noting our holding inYamaguchi, the majority found disbarment unwarranted, in partbecause corrupt motives and moral turpitude were not clearly shown.Howard, 188 Ill. 2d at 441-42.

This court has held that in determining the quantum of disciplinethe court will mete out, "the degree of punishment imposed in adisciplinary proceeding is based upon an evaluation of the evidence,the respondent's past record, his attitude at the disciplinaryproceeding, and the best interests of society." Imming, 131 Ill. 2d at260. We have also repeatedly stressed that where corrupt motives andmoral turpitude are not clearly shown, the proper punishment issuspension rather than disbarment. In re Chapman, 69 Ill. 2d 494, 501(1978). Taking into account respondent's recidivism, we cannot saythat a "suspension for a specified period of time" (134 Ill. 2d R.771(d)), however lengthy, as respondent suggests, is appropriate.Respondent does not appear to have grasped the importance of hisethical obligations, particularly when his friends are his clients. Forthis reason, we believe that a "suspension for a specified period anduntil further order of court" (emphasis added) (134 Ill. 2d R. 771(c))serves the purpose of our disciplinary processes. We stress that, afterdisbarment, this sanction is the most severe that we can impose on anattorney. In our view, the "until further order of court" portion of thediscipline reflects our agreement with the Administrator thatrespondent's recidivism warrants more than mere suspension.

Finally, we feel compelled to address several points raised indissent. The dissent accuses us of failing to sanction the misconductat issue in this case consistently with the sanctions imposed in othercases involving similar misconduct. The dissent also criticizes us forfailing to take into account respondent's recidivism. With respect tothe cases involving similar misconduct, the dissent states that wedistinguish two cases, In re Stillo and In re Feldman, whereas thedissenting justices believe that no meaningful distinction existsbetween those cases and the case at bar. With respect to Stillo, thedissent states that it is "difficult to discern what aggravating factorwas present [there] that is 'notably absent' [here] except perhaps, forStillo's accepting a settlement offer without prior authorization fromhis client." Slip op. at 17 (Garman, J., dissenting, joined by Thomas,J.). Accepting a settlement offer without client consent is a seriousethical lapse and would be further aggravation to the misconduct thatwas charged here. We believe that the absence of such misconducthere makes this case distinguishable from Stillo. With respect toFeldman, the dissent fails to note that at least nine check forgerieswere also at issue there. Fortunately, the misconduct here, althoughsimilar, does not rise to that level. We therefore respectfully disagreethat "there is no meaningful distinction to be made between Stillo,Feldman, and the present case and the samesanction-disbarment-should be imposed." Slip op. at 18 (Garman, J.,dissenting, joined by Thomas, J.). Discipline cases must be judged ontheir facts, and while the discipline imposed from case to case shouldbe consistent, we must take into account the factual differences thatdo exist from case to case. In our view, the factual differencesbetween these two cases and the case at bar compel the conclusionthat the discipline imposed here need not be similar.

As for the other cases involving similar misconduct, we note thatthe suspension ordered in In re Rosin was for a two-year period. Thesuspension ordered here, 42 months, is nearly twice as long induration. The same can be said for In re Joyce, where another two-year suspension was imposed. Clearly, standing alone, the misconductat issue here does not, in normal circumstances, warrant disbarment.However, this case is not normal in that respondent has haddisciplinary action taken against him before, as the dissent correctlynotes. Our decision to add the "until further order of court" languageto the suspension belies the dissent's belief that we have failed to takeinto account respondent's recidivism. We have considered therecidivism and have decided to suspend respondent, not only for aperiod of time nearly double in length that had been imposed in similarcases, but also until further order of court.

The dissent takes issue with our decision to suspend respondentfor a specified period of time and until further order of the court,intimating that the sanction does not give "sufficient attention to ourresponsibility to protect the public from respondent's habitualmisconduct or to protect the integrity of the profession." Slip op. at15 (Garman, J., dissenting, joined by Thomas, J.). The dissentsuggests that its preferred sanction, disbarment, would accomplishthose goals.

As noted earlier in this opinion, Supreme Court Rule 771 lists thevarious forms of discipline that are at this court's disposal. A popularmisconception regarding disbarment in this state is that a disbarredlawyer will never be allowed to practice law in Illinois again. This isnot true. Supreme Court Rule 767 provides that

"[a]n attorney who has been disbarred *** or suspendeduntil further order of the court may file his verified petitionwith the clerk of the court seeking to be reinstated to the rollof attorneys admitted to practice law in this State." 134 Ill.2d R. 767.

Thus, attorneys who are disbarred may seek reinstatement just asthose who are suspended until further order of court. In both cases,the disciplined attorney must seek a court order before he or she willbe allowed to practice. In the case of a disbarred attorney, he or shemust wait until five years after the date of disbarment before seekingreinstatement. 166 Ill. 2d R. 767. In the case of the suspendedattorney, he or she may not seek reinstatement until the period ofsuspension has passed. Critically, both forms of discipline share acommon characteristic, i.e., in order to practice again, the disciplinedattorney must first seek an order of this court to do so.

In light of the foregoing, it is difficult to accept the dissent'sposition that the discipline we impose upon respondent somehow failsto "protect the public from respondent's habitual misconduct or toprotect the integrity of the profession." The public is no moreprotected under the type of discipline the dissent would impose uponrespondent than the sanction that we have chosen to impose today.Likewise the integrity of the profession is no less protected under oursanction. The only practical difference between the two forms ofdiscipline is that under the dissent's position, respondent would beineligible to seek reinstatement for approximately one year longer thanunder our's. Given the fact that respondent will not practice until thiscourt allows him to do so, this difference is, in our view, negligible. Asthe dissent itself acknowledges, "our goal [in such cases] is not topunish the attorney." Howard, 188 Ill. 2d at 434. We have previouslynoted that disbarment is a form of discipline that should be used inmoderation. The sanction we impose today reflects our recognition ofthat fact while remaining faithful to the goals of attorney disciplinethat this court has developed over the years.

III. CONCLUSION

Respondent Leonard Thomas Timpone is suspended from thepractice of law for 42 months and until the further order of this court,effective March 26, 2001, the date of his interim suspension pursuantto Supreme Court Rule 774.

Respondent suspended.

JUSTICE GARMAN, dissenting:

I agree with the majority that, given the deference that must beafforded to the Hearing Board as the finder of fact (In re Spak, 188Ill. 2d 53, 66 (1999)), and our prior case law regarding similarmisconduct (In re Imming, 131 Ill. 2d 239 (1989)), the findings of theHearing Board must be affirmed.

I disagree, however, with the majority's decision to reject therecommendations of the Hearing Board, the Review Board, and theAdministrator that respondent be disbarred. These recommendationsare, of course, purely advisory. This court has the ultimateresponsibility for imposing attorney discipline. In re Chandler, 161 Ill.2d 459, 472-73 (1994). In doing so, we strive to achieve predictabilityand fairness by imposing sanctions consistent with those imposed forsimilar misconduct. In re Howard, 188 Ill. 2d 423, 440 (1999).Nevertheless, we approach each case with the understanding that "ourgoal is not to punish the attorney but rather to protect the public fromincompetent or unscrupulous attorneys, to maintain the integrity of theprofession, and to protect the administration of justice fromreproach." Howard, 188 Ill. 2d at 434. In my opinion, the majority hasnot given sufficient attention to our responsibility to protect the publicfrom respondent's habitual misconduct or to protect the integrity ofthe profession.

Although the majority cites cases in which similar misconduct hasnot resulted in disbarment (slip op. at 10), and cases in which repeatoffenders have not been disbarred (slip op. at 11), I do not find thesecases persuasive because this respondent has been disciplined on notjust one but two prior occasions. He was suspended for three years in1993 for conversion and commingling of client funds, failing tomaintain complete records of client funds, neglecting cases, hidingassets from the court, and making misrepresentations to the ARDC.He was censured in 1994 for failure to file tax returns for fiveconsecutive years. Slip op. at 5-6. The majority, however, does notgive great weight to respondent's prior misconduct as a factor inaggravation. Rather, the majority would require proof of corruptmotives or moral turpitude, rather than mere habitual misconduct,before imposing the severe sanction of disbarment. Slip op. at 11.

Similar Misconduct

The majority notes that in Imming a two-year suspension wasimposed when the attorney engaged in transactions similar to the loanat issue in Count I. Slip op. at 10. The Hearing and Review Boardsrecommended a two-year suspension for Imming, while theAdministrator recommended disbarment. Imming, unlike therespondent in the present case, "had a previously unblemished recordfor 26 years." Imming, 131 Ill. 2d at 261. This court noted that the"degree of punishment imposed in a disciplinary proceeding is basedupon an evaluation of the evidence, the respondent's past record, hisattitude at the disciplinary proceeding, and the best interests ofsociety." Imming, 131 Ill. 2d at 260. Further, although "we endeavorto achieve uniformity in imposing discipline, *** we also considereach case on its own merits." Imming, 131 Ill. 2d at 260. In the end,this court concluded that a two-year suspension "would be sufficientdeterrence to impress upon respondent and others the absolutenecessity of full disclosure in business transactions with clients and theimpropriety of overreaching in the attorney-client relationship."Imming, 131 Ill. 2d at 261.

The facts relevant to determining the proper sanction in thepresent case are readily distinguishable from the facts in Imming.Respondent does not have an unblemished record; he did not displayan attitude of cooperation or remorse at the disciplinary hearing; andhe has not been sufficiently deterred from misconduct by a prior three-year suspension.

The majority also points to the two-year suspension imposed inIn re Rosin, 118 Ill. 2d 365 (1987), for misconduct similar torespondent's. Slip op. at 10. In Rosin, the record was "replete withboth aggravating and mitigating circumstances" (Rosin, 118 Ill. 2d at387), while in the present case, there are aggravating circumstances,but no mitigating circumstances. In mitigation, Rosin received nobenefit from his conduct, he did not intentionally defraud his client,and he had no prior history of disciplinary action. Respondent, incontrast, did profit from his misconduct by securing and failing torepay a loan and by retaining funds that should have been promptlydisbursed to a client. Further, he has twice been subjected toprofessional discipline. In aggravation, the Administrator citeduncharged conduct of Rosin's. Rosin, 118 Ill. 2d at 388. In the presentcase, respondent's failure to file recent tax returns, even after aprevious censure for the same conduct, is uncharged conduct that theboards and the Administrator considered an aggravating circumstance.

In re Joyce, 133 Ill. 2d 16 (1989), in which a two-yearsuspension was imposed for commingling and conversion of clientfunds (slip op. at 10), is likewise unpersuasive. In Joyce, although therespondent attorney continued to deny any wrongdoing, he had beenpracticing for almost 20 years with no disciplinary record.

The majority distinguishes two cases cited by the Review Boardin its written decision on the basis that, in each case, "certainaggravation existed which is notably absent" in the present case. Slipop. at 11. In In re Stillo, 68 Ill. 2d 49, 51 (1977), this court ordereddisbarment of an attorney who borrowed money from a client andfailed to repay it. Later, after the client obtained other representation,Stillo signed a promissory note for the amount borrowed, plusinterest. By the time of the disciplinary proceeding, he had paid hisobligation in full, including interest. Stillo, 68 Ill. 2d at 52. Stillo alsosettled a claim for another client without her knowledge. Thesettlement check, "purporting to bear the endorsement" of the client,was deposited in Stillo's bank account. Stillo, 68 Ill. 2d at 52. Inaddition, although Stillo was not charged with giving false testimony,the Hearing Board concluded that he was not truthful in his testimony.Stillo, 68 Ill. 2d at 54.

Stillo is, thus, virtually on all fours with the present case exceptthat Stillo, unlike respondent, did repay the improper loan. It isdifficult to discern what aggravating factor was present in Stillo thatis "notably absent" in the present case except, perhaps, for Stillo'saccepting a settlement offer without prior authorization from hisclient. The client, however, did not object to the amount of thesettlement. She was wronged by Stillo's conversion of the proceeds.This court concluded that conversion of client funds to one's own useis "an act involving moral turpitude, and, in the absence of mitigatingcircumstances, *** is a gross violation of the attorney's oath, callingfor the attorney's disbarment." Stillo, 68 Ill. 2d at 54.

Later, in In re Feldman, 89 Ill. 2d 7 (1982), this court ordereddisbarment of an attorney who converted client funds and thencompounded his wrongdoing by signing another client's name onchecks to obtain funds so that he could cover up the earlierconversion. It is the intentional nature of his misconduct, as evidencedby the attempted cover-up, that the majority apparently finds to be asufficient aggravating factor to justify disbarment. Slip op. at 11.However, in Feldman, this court noted that "the offense of conversionis sufficient to justify disbarment" and, further, disbarment has beenimposed "in situations involving similar or less flagrant misconduct"than that committed by Feldman. Feldman, 89 Ill. 2d at 11. Inaddition, Feldman argued that a lesser sanction would be appropriate,given that this was the first instance in which he had been chargedwith professional misconduct. Feldman, 89 Ill. 2d at 13. As this courtaccurately observed, however, "the wrong committed does notconstitute an isolated incident. Rather, respondent has manifested apattern of behavior which clearly tends to bring the legal professioninto disrepute." Feldman, 89 Ill. 2d at 13. Respondent in the presentcase has also manifested a pattern of behavior that brings theprofession into disrepute.

In my opinion, there is no meaningful distinction to be madebetween Stillo, Feldman, and the present case and the samesanction-disbarment-should be imposed.

Recidivism

While the lack of prior discipline is often seen as a mitigatingfactor (see Imming, 131 Ill. 2d 239; Joyce, 133 Ill. 2d 16; Rosin, 118Ill. 2d 365), a history of prior discipline may be viewed as a factor inaggravation (see Imming, 131 Ill. 2d at 260 ("respondent's pastrecord" is relevant to determination of discipline to be meted out)).With regard to this aggravating factor, the majority notes theAdministrator's reliance on In re Blank, 145 Ill. 2d 534 (1991), butdoes not attempt to distinguish that case. Slip op. at 11. Instead, themajority relies on Howard, 188 Ill. 2d 423. Slip op. at 11.

In Blank, both the Hearing Board and the Review Boardrecommended that the respondent be suspended for two years whilethe respondent argued that a two-year suspension was excessive.Blank, 145 Ill. 2d at 554. This court, however, ordered him disbarredbecause, unlike an attorney suspended for 18 months for similarmisconduct, Blank was a recidivist. Blank, 145 Ill. 2d at 554, citing Inre Fox, 122 Ill. 2d 402 (1988). Attorney Blank had not beenpreviously suspended. In fact, his previous discipline consisted only ofa censure in 1984 for mishandling of a client's funds. Blank, 145 Ill.2d at 554. Factors supporting disbarment were his recidivism, thegravity of his offenses, and the fact that Blank failed to recognize hisimproper conduct and attempted to blame his problems on another.Blank, 145 Ill. 2d at 555. I agree with the Administrator that Blankoffers sound support for disbarment in the present case.

In Howard, the Hearing Board recommended a two-yearsuspension for an attorney who made a misrepresentation regardinga past suspension in a petition to practice pro hac vice in anotherstate, neglected a criminal appeal, engaged in the practice of law whileunder a prior suspension, and failed to promptly return unearned fees.The Review Board adopted the Hearing Board's findings of fact, butreduced the recommended suspension to a period of three months.Howard, 188 Ill. 2d at 425. The Administrator filed exceptions,arguing that the misconduct proven in this case, coupled withHoward's history of prior misconduct, demanded a sanction "far inexcess of the three months" recommended by the Review Board. Thiscourt agreed. Howard, 188 Ill. 2d at 440.

Three dissenting justices advocated disbarment of Howard, butthe majority rejected disbarment, stating that "where corrupt motivesand moral turpitude are not clearly shown, the proper punishment issuspension rather than disbarment." Howard, 188 Ill. 2d at 441. Withregard to his recidivism, this court noted that the acts underlying theearlier suspension occurred during the same period of time as theneglect of the criminal appeal that formed a substantial part of thecurrent matter. Howard, 188 Ill. 2d at 441-42. In addition, theprevious suspension was for five months so that a suspension for twoyears, more than four times the duration of the earlier suspension,would be "sufficiently meaningful" to have the desired effect. Howard,188 Ill. 2d at 442. Finally, there was substantial mitigation based onHoward's "years of dedicated service to the community, to his church,and to a segment of the population that is often overlooked." Howard,188 Ill. 2d at 442.

Respondent in the present case did not demonstrate a substantialdegree of mitigation. As the majority notes, the Hearing Board foundhis testimony regarding community service and pro bonorepresentation essentially self-serving and insufficient to warrantsubstantial consideration. Slip op. at 6. He expressed no remorse and,indeed, made false statements to the ARDC. In addition, the majorityis not imposing a suspension four times as long as the earliersuspension. The 42-month suspension is a mere six months longerthan respondent's three-year suspension, the "until further order"provision notwithstanding.

The present case can also be distinguished from Howard on thebasis of the timing of the various offenses. The misconduct at issue incount I of the present complaint occurred in 1988, prior to the earlierdisciplinary actions. Thus, it is conceivable, I suppose, that theintervening disciplinary actions had such an effect on respondent thathe determined never to engage in such conduct again. The facts,however, do not support such an optimistic view. Althoughrespondent solicited the loan from Rznewicki prior to either of his twoearlier disciplinary actions, he did not repay that loan even after hissuspension expired and he was again earning sufficient funds to repayhis debt. Rzewnicki obtained a default judgment against respondent inJanuary 1999 and, still, respondent made no effort whatsoever torepay the loan. The misconduct at issue in count II of the complaintoccurred in 1998, as did the false statements made by respondent tothe ARDC, which are the subject of count III.

Previous disciplinary actions had no apparent effect onrespondent. Indeed, the Hearing Board noted that he tended to justifyand minimize his actions, rather than accept responsibility for them.Respondent, however, told the Board that he had "learned his lesson"from his failure to document his transaction with Purnell. Thisstatement should be viewed with skepticism since respondent did notlearn his lesson regarding the maintenance of complete records evenafter a previous suspension. In re Timpone, 157 Ill. 2d 178 (1993).

I find the reasoning of the Review Board persuasive. The timingof the misconduct at issue demonstrates that the earlier suspensionhad no effect on respondent's conduct. This three-year suspensionended in 1996 and he was again mishandling client funds as early as1998. Similarly, although respondent was censured in 1994 for failureto file a timely tax return, he had not filed his 1998 return by the timeof his hearing before the Hearing Board. His lack of candor andremorse weigh in favor of a severe sanction. The Review Board, thus,concluded that even a lengthy suspension would not alter respondent'sconduct.

Corrupt Motives or Moral Turpitude

Even when respondent's repeated offenses are taken intoconsideration, the majority is reluctant to disbar an attorney in theabsence of evidence of corrupt motives or moral turpitude. The casesrelied upon are Howard, 188 Ill. 2d at 441 ("where corrupt motivesand moral turpitude are not clearly shown, the proper punishment issuspension rather than disbarment"), and In re Chapman, 69 Ill. 2d494, 501 (1978) (" 'Suspension is a proper punishment "where acorrupt motive and moral turpitude are not clearly shown" ' "),quoting In re Taylor, 66 Ill. 2d 567, 571 (1977), quoting In re Ahern,23 Ill. 2d 69, 74 (1961).

On the other hand, there are numerous cases in which this courthas equated conversion of client funds with corruption. See, e.g., Inre Himmel, 125 Ill. 2d 531, 543 (1988) ("It is clear that conversion ofclient funds is, indeed, conduct involving moral turpitude") (citing Inre Levin, 118 Ill. 2d 77, 88 (1987), and Stillo, 68 Ill. 2d at 54).

Although respondent's conduct is certainly less blameworthy thanthat of an attorney who sets out to deliberately defraud his clients, itis not the result of mere inadvertence, or a single instance of yieldingto temptation, or inexperience, or personal pressures related to familymatters or to health. He has demonstrated for more than a decade thathe cannot be trusted to conform his conduct to the Rules ofProfessional Conduct. His recidivism is the evidence of corruption.

Conclusion

Disbarment is a severe penalty that should be used only in casesof serious misconduct. In re Yamaguchi, 118 Ill. 2d 417, 428-29(1987) (declining to disbar attorney who aided another in theunauthorized practice of law and imposing six-month suspensionrecommended by Review Board where respondent had no history ofprofessional discipline, did not profit or attempt to profit from hismisconduct, and neither harmed nor intended to harm anyone).Respondent's pattern of misconduct is serious, repeated, andremorseless. It is this court's duty to protect the public from suchconduct. Respondent should be disbarred.

JUSTICE THOMAS joins in this dissent.