In re: Thomas

ILLINOIS OFFICIAL REPORTS

Supreme Court

In re Thomas, 2012 IL 113035

Caption in Supreme In re ROBERT C. THOMAS, Attorney-Respondent.

Court:

Docket No. 113035

Filed January 20, 2012

Held A one-year suspension was ordered for an attorney whose earlier driving

(Note: This syllabus under the influence and on a revoked license had resulted in a prior

constitutes no part of suspension during which he continued to practice law without

the opinion of the court authorization under circumstances indicating dishonesty and

but has been prepared misrepresentation because he concealed and ignored his suspension, and,

by the Reporter of later, denied all wrongdoing.

Decisions for the

convenience of the

reader.)

Decision Under Disciplinary proceeding.

Review

Judgment Respondent suspended.

Counsel on Susan Frederick Rhodes and Rosalyn B. Kaplan, both of Chicago, for the

Appeal Administrator of the Attorney Registration and Disciplinary Commission

Robert C. Thomas, of Hinsdale, respondent pro se.

Justices JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶1 The Administrator of the Attorney Registration and Disciplinary Commission

(Commission) filed a three-count complaint against respondent, Robert C. Thomas, charging

him with misrepresentation to a tribunal and two counts of unauthorized practice of law. The

Hearing Board found that the Administrator had proven misconduct and recommended

respondent be suspended from the practice of law for two years. Respondent timely filed

exceptions with the Review Board, which recommended dismissal of the charges. The

Administrator filed a petition for leave to file exceptions with this court, pursuant to Supreme

Court Rule 753(e)(1) (Ill. S. Ct. R. 753(e)(1) (eff. Dec. 1, 1995)), which we allowed.

¶2 BACKGROUND

¶3 Respondent was admitted to practice in Illinois in 1969. He left the practice of law for

a time, serving as president and chief executive officer of a steel company. He returned to

the practice of law in 1998.

¶4 In 2004, the Administrator filed a six-count complaint alleging that respondent had been

convicted of two charges of misdemeanor driving under the influence of alcohol, one charge

of misdemeanor driving while his license was revoked, and three felony charges of driving

while his license was revoked. In each instance the Administrator also alleged that

respondent failed to report his conviction to the Commission in violation of Supreme Court

Rule 761(a) (Ill. S. Ct. R. 761(a) (eff. July 1, 1984)). In addition, the Administrator charged

that respondent neglected a client’s declaratory judgment action. The Hearing Board found

that the Administrator had proven the misconduct alleged in five of the six counts. As to the

sixth count, neglect of a client matter, the Hearing Board found that some of the allegations

had been proven. The Review Board affirmed. On September 26, 2005, this court issued an

order suspending respondent from the practice of law for a period of 18 months, effective

October 17, 2005, and ordering him to reimburse the Disciplinary Fund for any client

protection payments arising from his conduct.

¶5 On October 17, 2007, the Administrator filed the present three-count complaint. Count

I alleged misrepresentation to a tribunal, specifically the United States Bankruptcy Court for

the Northern District of Illinois. Count II alleged that respondent engaged in the unauthorized

practice of law before the United States Court of Appeals for the Seventh Circuit during his

suspension. Count III alleged that he engaged in the unauthorized practice of law in the

circuit court of Du Page County after the effective date of his suspension.

-2-

¶6 Count I

¶7 Count I involves a matter that occurred prior to respondent’s suspension. In 1998,

Thomas Consolidated Industries (TCI), a corporation of which respondent was president and

sole shareholder, purchased a tool and die shop from Juergen and Trudy Herbst, who

continued to own the property where the business was located. Later, the Herbsts filed a

forcible entry and detainer action against TCI. In 1999, TCI filed for bankruptcy. Respondent

at times represented the bankruptcy trustee and, in 2001, he filed an adversary proceeding

on behalf of the trustee against the Herbsts and others, alleging breach of contract, fraud in

the inducement, and other claims.

¶8 Discovery was a long, drawn-out process. According to the Herbst defendants,

respondent refused to comply with requests for production of documents and to answer their

interrogatories. In January 2004, the Herbsts filed a motion to compel, alleging that

respondent had failed to adequately respond to their discovery requests. On March 8, 2004,

the bankruptcy court ordered respondent to comply by April 30, 2004. On May 10, 2004, the

Herbsts filed a motion for sanctions, alleging, in part, that respondent had not complied with

the court’s March 8 order. A hearing on the motion was set for May 13, 2004.

¶9 On May 12, 2004, however, the Herbsts’ attorney received an overnight delivery package

from United Parcel Service (UPS) containing the outstanding discovery responses. Attached

to the discovery documents was a signed certificate of service, in which respondent stated

that the materials had been sent “by U.S. mail postage prepaid” on “May 7, 2004.” At the

May 13 hearing, the Herbsts’ attorney stated that the materials received the previous day

were “inadequate, incomplete, and non-responsive” to the discovery requests. In addition,

she stated that she checked the package’s tracking number on the UPS website, which

indicated that UPS had received the package on May 11, 2004, for overnight delivery and

delivered it to her on May 12, 2004. That is, respondent not only sent the discovery materials

after the April 30 deadline, he appeared to have sent them after the Herbsts’ attorney filed

the motion for sanctions. On May 27, 2004, the Herbsts filed an amended motion stating that

the documents received on May 12 were certified by respondent to have been mailed on May

7. The amended motion also incorporated the UPS tracking information.

¶ 10 After another hearing on August 5, 2004, the bankruptcy court ruled on the Herbsts’

motion for sanctions. At that hearing, respondent stated “for the record,” that he delivered

the materials on May 7 “to the UPS store for copying and mailing. They mailed the material

from the UPS store.” Referring to the certificate of service, he stated that “[t]here was

nothing false, or inadvertent, or misleading in the statement.” At the conclusion of the

hearing, the court granted the motion for sanctions, dismissing the case with prejudice based,

in part, on respondent’s failure to comply with the March 8, 2004, discovery order. In doing

so, the court stated “[w]hat appears from the record is that you sent off your responses to

discovery via UPS on May 11th and lied about when you did it. Now lie is a strong word and

I use it here advisedly. At the very least, you asserted contradictory positions.”

¶ 11 Respondent filed a notice of appeal with the United States district court, which affirmed

the dismissal of the complaint with prejudice as a sanction for violation of the discovery

order. In this appeal, respondent, as counsel for the bankruptcy trustee, “did not challenge

-3-

the finding[s] that [he] lied to the court, and that [he] served the discovery responses only

after receiving the motions for sanctions.” In re Thomas Consolidated Industries, Inc., 456

F.3d 719, 724 (7th Cir. 2006).

¶ 12 In the subsequent appeal to the Seventh Circuit, the court rejected respondent’s argument

that the date on which he tendered the discovery materials was “irrelevant” to the issue of the

propriety of dismissal as a sanction. The court stated that respondent’s lie about when and

how he served the discovery responses “went to the heart of the [bankruptcy] court’s order.”

Thomas Consolidated Industries, 456 F.3d at 726. Further:

“Although he conceded that the responses were late in coming, he did not concede

what was obvious to this court and to the courts below, that [he] failed to tender any

responses until after the motion for sanctions was filed on May 10. His lie was

calculated to make the court believe that he substantially complied with the court’s

order without the threat of the sanctions motion. Perhaps he hoped to persuade the

court to enter a less severe sanction; perhaps he hoped to avoid sanctions entirely.

But the lie was so obviously related to the failure to comply with the order that the

connection did not merit express mention below. Because this is the focus of [TCI’s]

argument, we make express what the courts below implied: the lie about when and

where the responses were tendered was evidence of a bad faith breach of the court’s

discovery order. Moreover, the courts below did not rely solely on Thomas’ lies for

a showing of bad faith, but relied in part on the fact that he repeated the same non-

responsive, inadequate answers that the bankruptcy court expressly warned him were

unacceptable. This blatant disregard of the bankruptcy court’s order was more than

sufficient to demonstrate the bad faith finding that justified dismissal.” Id.

¶ 13 In the complaint, the Administrator charged that respondent’s statements in the certificate

of service and in the hearing before the bankruptcy court were false and that respondent knew

or should have known that they were false, because he did not deposit the discovery

responses in the “U.S. mail” on May 7, 2004; rather, he placed the materials with UPS for

delivery on May 11, 2004. This conduct, the Administrator charged, constituted a violation

of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (Ill. Rs. Prof’l Conduct

R. 3.3(a)(1) (eff. Aug. 1, 1990) (making a “false statement of material fact or law to a

tribunal”)). In addition, the Administrator charged that this conduct violated Rule 8.4(a)(4)

(Ill. Rs. Prof’l Conduct R. 8.4(a)(4) (eff. July 1, 1990) (conduct involving dishonesty, fraud,

deceit, or misrepresentation)), and Rule 8.4(a)(5) (Ill. Rs. Prof’l Conduct R. 8.4(a)(5) (eff.

July 1, 1990) (conduct prejudicial to the administration of justice)).1 Thus, the Administrator

argued, respondent was subject to discipline under Supreme Court Rule 770 (Ill. S. Ct. R.

770 (eff. Apr. 1, 2004) (conduct that tends to defeat the administration of justice or to bring

the courts or the legal profession into disrepute)).

1

The Illinois Rules of Professional Conduct, adopted February 8, 1990, and effective August

1, 1990, which were in effect at the time of the conduct at issue, have been repealed and replaced

by the Illinois Rules of Professional Conduct of 2010, effective January 1, 2010.

-4-

¶ 14 Count II

¶ 15 On August 13, 2004, after the bankruptcy court dismissed TCI’s lawsuit against the

Herbsts and others, the bankruptcy trustee filed a notice of appeal with the United States

District Court for the Northern District of Illinois. The notice of appeal listed Louis Levit as

the attorney for the trustee and respondent as the former attorney. As noted above, the district

court affirmed the dismissal on May 11, 2005. The trustee in bankruptcy subsequently

decided to abandon the adversary claim. TCI, the underlying debtor, took over the action,

replacing the bankruptcy trustee as appellant. On June 9, 2005, respondent filed a timely

notice of appeal with the United States Court of Appeals for the Seventh Circuit. He did not,

however, file an appearance as TCI’s attorney.

¶ 16 On November 28, 2005, he filed a “Motion for Extension of Time” in the pending appeal.

In that motion, he stated that he had been “working on the brief” and would “continue to do

so.” He also stated that he was “in discussion” with counsel to represent TCI but that if

counsel could not be retained, he would complete the brief within the time requested. He

asked for an extension until December 28, 2005. He signed the motion as TCI’s president

and shareholder, not as its attorney. On December 29, 2005, respondent filed a second

“Motion for Extension of Time,” in which he attributed the delay to difficulty in obtaining

the record from opposing counsel. He again stated that he had been “diligently working on

the brief.” Again, he signed the motion as TCI’s president and sole shareholder.

¶ 17 On January 3, 2006, the Seventh Circuit entered an order stating that TCI, a corporation,

could proceed only through counsel and that because respondent was suspended, he could

not represent the corporation. In its order, the Seventh Circuit cited Scandia Down Corp. v.

Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985) (stating that “corporations must appear

by counsel or not at all”). Respondent thereafter retained counsel to finish the appeal.

¶ 18 In the complaint, the Administrator charged that at the time respondent prepared and filed

the two motions in the appeal before the Seventh Circuit, he was suspended from the practice

of law in Illinois and in the Northern District of Illinois. Because respondent was not capable

of serving as counsel to the corporation of which he was president and sole shareholder, the

complaint alleged a violation of Rule 5.5(a) of the Illinois Rules of Professional Conduct

(practicing in a jurisdiction where doing so violates the regulation of the legal profession in

that jurisdiction). In addition, the Administrator charged violations of Rules 8.4(a)(4) and

(a)(5) and Supreme Court Rule 770.

¶ 19 Count III

¶ 20 Prior to his suspension, respondent represented Mervyn and Mercedes Phillips, the

defendants in a citation proceeding brought by CIB Bank in the circuit court of Du Page

County. He did not notify his clients, the circuit court, or opposing counsel of his pending

suspension.

¶ 21 Three days before his suspension was to take effect, respondent filed a “petition for

hearing/rehearing,” which this court construed as a motion for reconsideration. This court

ordered the Administrator to respond to the motion.

¶ 22 On October 19, 2005, two days after his suspension went into effect, respondent appeared

-5-

in the CIB Bank matter at a citation hearing in the Lake County circuit court on behalf of a

citation respondent, Hillmoor Golf Club. The judge called respondent to the bench and

advised him that he was aware of the suspension order with an effective date of October 17.

Respondent advised the court that the order was stayed.

¶ 23 Senior counsel for the Administrator sent a letter by regular and certified mail to

respondent on October 20, 2005, informing him that under Supreme Court Rule 771(b), his

suspension had become effective on October 17 and that his “filing of a petition for rehearing

in this matter does not automatically stay or recall the court’s mandate.” (Emphasis in

original.) A copy of Supreme Court Rule 764, which lists the duties of disciplined attorneys,

was enclosed. In addition, the letter advised that the Commission had received information

from various sources that respondent continued to file pleadings and appear in court on

behalf of clients after the date of his suspension and that, if true, this conduct “may violate

various provisions of the Rules of Professional Conduct.”

¶ 24 Respondent replied to this correspondence from the Administrator by letter, stating that

he filed his petition for rehearing pursuant to Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff.

Sept. 1, 2006)), and that as a result, the order of suspension “is stayed until the Supreme

Court rules upon the petition.” He characterized the October 20 letter as “threatening,” and

stated that counsel for the Administrator had “an unnatural desire to punish and harass him.”

He accused John Ropiequet, an attorney for the plaintiffs in the CIB case, of threatening his

clients and “undertaking to usurp the authority of the Supreme Court.” He further suggested

that the Commission investigate Ropiequet and asked that the Commission “[p]lease keep

me informed.”

¶ 25 On October 26, 2005, respondent conducted the deposition of Ropiequet and appeared

with the Phillipses as their attorney as they were deposed.

¶ 26 On that same date, counsel for the Administrator informed respondent by letter that

Supreme Court Rule 367 did not apply to his suspension and directed him to Rule 771(b),

which provides that a petition for rehearing from a disciplinary order does not stay or recall

the court’s mandate. Ill. S. Ct. R. 771(b) (eff. Apr. 1, 2004). The letter further recommended

that respondent contact the clerk of the Supreme Court to resolve any doubt he might have

regarding his status. The telephone number for the clerk’s office was provided. Finally, the

letter informed respondent that:

“If you continue to hold yourself out as an attorney and continue to engage in the

practice of law, your conduct may be deemed the unauthorized practice of law, and

therefore exposing [sic] you to criminal sanctions, contempt of court and/or

additional disciplinary proceedings. In addition, your conduct may cause prejudice

to your clients in that any rulings made during a period of suspension may be deemed

void by the courts.”

¶ 27 This court denied respondent’s motion for reconsideration on October 28, 2005.

¶ 28 An investigation was opened after the Commission received a report from attorney

Ropiequet. After looking into the matter, the Administrator advised Ropiequet that “upon

our communications with him, Mr. Thomas withdrew from the case at issue and has ceased

any representation in that matter. As a result, we have determined that a formal disciplinary

-6-

prosecution of Mr. Thomas is unnecessary.”

¶ 29 On August 30, 2006, respondent was also advised by a letter from counsel for the

Administrator that the matter had been closed. The letter specifically referred to Commission

Rule 54, which provides that the Administrator shall close an investigation when he

concludes “that there is insufficient evidence to establish that the respondent has engaged in

misconduct” and that such closure “shall not bar the Administrator from resuming the

investigation if circumstances warrant.” Attorney Registration and Disciplinary Comm’n R.

54. On July 18, 2007, counsel for the Administrator informed respondent that the matter was

being reopened in light of his continuing to practice law in the matter before the Seventh

Circuit.

¶ 30 In count III, the Administrator charged that respondent’s participation in the October 26,

2005, depositions as attorney for the Phillipses violated Rules of Professional Conduct

5.5(a), 8.4(a)(4), and 8.4(a)(5) and Supreme Court Rule 770.

¶ 31 Hearing Board

¶ 32 Count I

¶ 33 Before the Hearing Board, respondent testified that he took the discovery documents to

the UPS store in Willowbrook, Illinois, on May 7, 2004, for copying and mailing. He did not

instruct the UPS store that he wanted the documents to be copied and sent by United States

Postal Service that day. He assumed that the work would be done that day and did not ask

when or how the materials would be sent. UPS did not give him a date. He further testified

that after copying the documents, the UPS store sent them to another UPS facility in

Addison, Illinois, for delivery. He had never been to the Addison facility. He also admitted

that his answers to the discovery requests were due on April 30, 2004, and that he did not

comply with the discovery order. He explained that his strategy was to provoke the

bankruptcy court into imposing a discovery sanction so that he could appeal and obtain a

remand to a different judge.

¶ 34 The Hearing Board accepted as true respondent’s statement that he took the discovery

materials to the UPS store on May 7, 2004. The tracking information obtained from the UPS

website might be explained by his delivery of the materials to the Willowbrook store on May

7 and later delivery by UPS itself to the Addison facility on May 11. In the absence of

evidence explaining UPS procedures, the Hearing Board found that the Administrator failed

to prove that respondent lied about the date on which he delivered the documents to UPS.

¶ 35 Nevertheless, the Hearing Board concluded, he engaged in misconduct by certifying that

he sent the documents on May 7 by United States Postal Service. The certificate was “wrong

and misleading” because the documents were not sent on May 7 and they were not sent via

“U.S. mail.” Respondent had no basis for making these assertions; he did not have a

reasonable expectation that the documents would be sent on this date or in this manner, and

he did not inquire about when and how they would be sent. Thus, “[b]y completing and

delivering the inaccurate certificate of mailing,” he engaged in misconduct. If he did not lie,

he “completed the certificate of mailing with indifference to the truth.”

-7-

¶ 36 Count II

¶ 37 Before the Hearing Board, respondent testified that he filed an appearance in the appeal

before the district court, but did not file an appearance in the appeal before the Seventh

Circuit. When he filed the motions, he knew his law license had been suspended, but

believed he could represent his interests in the corporation pro se, as its president and sole

shareholder. He stated that he had reviewed the Federal Rules of Civil Procedure and the

rules of the Seventh Circuit and found no federal or local rule prohibiting him from

appearing on behalf of the corporation pro se. He was not aware of the Scandia Down case

or other case law standing for that proposition.

¶ 38 The Hearing Board found the facts sufficient to prove that respondent practiced law while

his license was suspended. He prepared and filed two motions and represented to the court

that he was working on the appellate brief. Although he stated that he believed that he could

represent the corporation pro se, he admitted in a sworn statement that he did not research

the question beyond looking at the federal rules and that the law is clear that a corporation

must be represented by a licensed attorney. The Hearing Board also rejected respondent’s

defense that he lacked intent to violate the order of suspension.

¶ 39 Count III

¶ 40 Attorney John Ropiequet testified before the Hearing Board that he represented CIB

Bank in the case in which respondent represented the Phillipses. He stated that he was aware

of the pending disciplinary proceedings against respondent and that he was concerned about

concluding discovery by the November 1, 2005, deadline set by the circuit court. He

followed the progress of the disciplinary proceedings and on October 18, 2005, he wrote to

the Phillipses to inform them that respondent had been suspended from the practice of law

and that they were no longer represented in the lawsuit. He also advised them that, as a result,

the depositions could not take place as scheduled. With the November 1 discovery deadline

looming, the depositions would have to be rescheduled as soon as possible.

¶ 41 Ropiequet also testified that he received a telephone call from respondent on October 20,

2005. Respondent informed him that his clients would appear for their scheduled depositions

and that he would be taking Ropiequet’s deposition. He informed Ropiequet that he had filed

a petition for rehearing with the Illinois Supreme Court. Finally, he threatened that if

Ropiequet ever contacted his clients again, he would “punch your teeth down your throat,

you little bastard.” Thereafter, Ropiequet contacted the office of the clerk of the Supreme

Court regarding respondent’s status. He was informed that respondent had filed a petition for

rehearing, but that he remained suspended from the practice of law.

¶ 42 He further testified that on November 9, 2005, he filed a motion for a rule to show cause

based on respondent’s suspension. In that motion, Ropiequet argued that respondent’s

unauthorized practice of law showed contempt of court. The motion was accompanied by an

affidavit by Ropiequet regarding the telephone conversation and transcripts of the

depositions in which respondent participated. At the hearing on the motion, respondent told

that court that he had filed a petition for rehearing and believed that his suspension was

stayed, pending a ruling on the petition. At that same hearing, a motion was filed to substitute

-8-

another lawyer as counsel for the Phillipses. The circuit court denied the petition for a rule

to show cause.

¶ 43 Ropiequet subsequently filed a request for a Commission investigation of respondent’s

continuing to hold himself out as an attorney after the effective date of his suspension. He

was informed by counsel for the Administrator that because respondent withdrew from

representing the Phillipses, no formal disciplinary proceeding was necessary.

¶ 44 Respondent told the Hearing Board that he filed a petition for rehearing in the

disciplinary matter. Because this court ordered the Administrator to file a response to the

petition for rehearing, he believed that rehearing was under consideration and that, as a

result, his order of suspension was stayed pending this court’s ruling on the petition. He

stopped representing the Phillipses when this court denied his petition for rehearing on

October 28, 2005.

¶ 45 The Hearing Board found that respondent engaged in the unauthorized practice of law

when he conducted one deposition and appeared on behalf of clients at two other depositions

while his license was suspended. The Hearing Board stated that “there can be no question,

and Respondent does not dispute” that he practiced law in Du Page County after the

suspension took effect. His belief that the suspension was stayed pending a decision on his

petition for rehearing was contrary to the plain language of the applicable rule, Supreme

Court Rule 771(a), which states in pertinent part that: “No petition for rehearing pursuant to

Rule 367 may be filed in such a case, nor will any motion or other paper submitted after an

order is filed automatically stay or recall the court’s mandate.” Ill. S. Ct. R. 771(a) (eff. Apr.

1, 2004). Thus, the Hearing Board concluded, respondent “had no reasonable basis to believe

that the petition for rehearing would have any effect on the suspension order.”

¶ 46 In sum, the Hearing Board found all three counts proven and recommended that

respondent be suspended from the practice of law for two years.

¶ 47 Review Board

¶ 48 Before the Review Board, respondent did not challenge the Hearing Board’s findings of

fact, but he denied any misconduct. The Review Board, therefore, proceeded with de novo

review.

¶ 49 As to count I, the Review Board unanimously concluded that respondent’s misstatements

in the certificate of service “made no difference to the proceedings before the bankruptcy

court” and that they “were not material misrepresentations.” Thus, there was insufficient

evidence of a violation of Rule 3.3(a)(1). In addition, respondent’s mere indifference as to

the truth of the information in the certificate of service did not constitute dishonesty, fraud,

deceit, or misrepresentation under Rule 8.4(a)(4). There was also insufficient evidence that

respondent violated Rule 8.4(a)(5) or Supreme Court Rule 770.

¶ 50 As to count II, the Review Board unanimously concluded that reversal of the Hearing

Board was required because the Administrator failed to present evidence that respondent’s

filings in the Seventh Circuit violated the regulations of that licensing jurisdiction.

¶ 51 As to count III, respondent argued that under Commission Rule 54, a closed investigation

-9-

may be reopened only if the Administrator obtains additional evidence regarding the original

charges. The majority agreed, concluding that “[i]f the evidence was initially insufficient to

establish misconduct, the fact that there is evidence of misconduct relating to another matter

does not strengthen the evidence in the first.” A majority of the Review Board agreed with

respondent that the Administrator improperly reopened an investigation that had been closed

in August 2006. Thus, the Review Board did not address the merits of the Hearing Board’s

finding of misconduct.

¶ 52 One member of the Review Board dissented as to count III, finding that the

circumstances warranted reopening of the earlier investigation because the Administrator

received information showing that respondent’s unauthorized practice “was not the isolated

incident that he had first believed.” The dissenting member would have found misconduct

that violated Rules 5.5(a) and 8.4(a)(5) and Supreme Court Rule 770.

¶ 53 A majority of the Review Board concluded that the unchallenged facts did not

demonstrate misconduct and recommended that all charges be dismissed. The dissenting

member would have found misconduct under count III of the complaint and recommended

suspension for one year.

¶ 54 ANALYSIS

¶ 55 The Administrator raises three issues before this court and argues, in addition, that the

appropriate sanction for the totality of respondent’s misconduct is suspension for three years.

With regard to count I, the Administrator argues that respondent’s misrepresentations in the

certificate of service were material and that the Hearing Board’s findings were, therefore,

correct. As to count II, the Administrator argues that despite his claim to the contrary,

respondent did engage in the unauthorized practice of law before the Seventh Circuit. As to

count III, the Administrator argues that the investigation into allegations of respondent’s

unauthorized practice in state court was authorized by Commission Rule 54.

¶ 56 In a disciplinary proceeding, the Administrator has the burden of proving the allegations

of the complaint by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542

(2006). The Hearing Board’s findings of fact are reviewed by this court under a manifest

weight of the evidence standard, under which a factual finding will be disturbed only if the

opposite conclusion is clearly evident. Id. We afford such deference to the Hearing Board

because it is in the best position to observe the witnesses, to assess their demeanor and

credibility, to resolve conflicting testimony, and to render fact-finding judgments. Id. at 543.

We review questions of law, including interpretation of rules, de novo. In re Storment, 203

Ill. 2d 378, 390 (2002).

¶ 57 Count I

¶ 58 The Hearing Board accepted respondent at his word that he delivered the discovery

materials to UPS on May 7. Although the bankruptcy court reached the opposite result,

concluding that respondent lied about the date, we cannot say that its conclusion is clearly

evident. In addition, although the UPS tracking information obtained by opposing counsel

calls the truth of this statement into question, the Administrator did not produce evidence

-10-

from which one could reasonably conclude that the materials were not taken to the UPS store

in Willowbrook on May 7. We, therefore, accept as fact that respondent took the materials

to the UPS store on May 7.

¶ 59 The other relevant facts are undisputed. Respondent signed a certificate of service stating

that he had deposited the discovery documents with the United States Postal Service on May

7, 2004. He did not, however, mail the documents on that date. Rather, he took them to a

UPS store for photocopying. In addition, the documents were not deposited with the United

States Postal Service by respondent or by UPS. They were delivered to opposing counsel via

overnight delivery by UPS on May 12, 2004.

¶ 60 Thus, the certificate of service signed by respondent contained two factual errors–the

manner of transmission (United States Postal Service versus UPS) and the date of mailing

or shipping (May 7 versus May 11). Although, given the record before the Hearing Board,

we cannot conclude that respondent deliberately lied about the date and manner of his

compliance with the discovery order, it is clear that he made false statements in the certificate

of service. It was his professional responsibility, as the lawyer signing the certificate, to

ensure that the statements made therein were true. Respondent had no basis for believing that

documents he dropped off at a UPS store for photocopying would be copied and sent that

same day. He did not instruct the UPS store that the materials were to be copied and sent that

day. He did not even ask UPS personnel how long the copying and preparation would take

or when the package would be ready for delivery. He neither asked how the package would

be handled nor instructed the UPS store to send the package via United States Postal Service.

Had he made these basic and reasonable inquiries, he would have signed a certificate stating

that the discovery materials were deposited with UPS for copying and delivery on May 7,

2004.

¶ 61 The Administrator charged and the Hearing Board concluded that respondent violated

Rule 3.3(a)(1) because these statements were statements of material fact that the lawyer knew

or reasonably should have known were false and that he made them while appearing in a

professional capacity before a tribunal. The Review Board found the statements, even if

false, to be immaterial.

¶ 62 Before this court, the Administrator argues that the false statements were material, given

the context in which they were made. Respondent had failed to comply with the bankruptcy

court’s discovery order and was facing possible sanctions. The bankruptcy court concluded

that these statements were not merely false, they were deliberate lies intended to conceal the

fact that his compliance was not only late, but that he did not comply with the order until

after opposing counsel filed a motion for sanctions. Thus, the Administrator argues,

respondent’s misrepresentations were material to the bankruptcy court, the federal district

court, and the Seventh Circuit, noting the sanction of dismissal with prejudice, which was

upheld on review.

¶ 63 Respondent argues that the Commission failed to plead and prove materiality. He points

to paragraph 10 of the complaint, which alleged that respondent’s statements “were false and

Respondent knew or should have known they were false,” and paragraph 12(a), which

charges respondent with “making a statement of material fact that the lawyer should have

-11-

known was false while appearing in a professional capacity before a tribunal” in violation

of Rule 3.3(a)(1). These allegations, he asserts, are insufficient as a matter of law.

¶ 64 We have not had occasion to define the term “material” in the context of Rule 3.3(a)(1)

and we are not inclined to do so in this case, not because respondent is blameless, but

because the remaining counts are a sufficient basis for imposing discipline in this case and

because a violation of Rule 3.3(a)(1) in this manner would not affect our decision as to the

proper form of discipline.

¶ 65 That said, respondent knew or should have known that the documents would not be sent

to opposing counsel on May 7, 2004, and he knew or should have known that they would not

be sent via United States Postal Service. We reiterate: it was his professional responsibility

to determine that the facts contained in the certificate he was signing were accurate. This

same failure to inquire and utter lack of care as to the truthfulness of his statements are

displayed again in the other counts.

¶ 66 Count II

¶ 67 The Commission argues that respondent’s filing of motions on November 28 and

December 29, 2005, and his work on preparing an appellate brief for filing in the Seventh

Circuit after the date of his suspension constituted the unauthorized practice of law in

violation of Rule 5.5(a).

¶ 68 The order of suspension took effect on October 17, 2005, and this court denied

respondent’s petition for rehearing on October 28, 2005. It is, therefore, absolutely certain

that respondent knew he was suspended from the practice of law when he filed the motions

and informed the Seventh Circuit that he was preparing the brief. It is also clear that the filing

of motions and the preparation of an appellate brief constitutes the practice of law. See In re

Howard, 188 Ill. 2d 423, 438 (1999) (practice of law includes services rendered to clients out

of court); In re Discipio, 163 Ill. 2d 515, 523 (1994) (completion of forms and gathering of

information necessary to do so was practice of law because it required legal knowledge and

skill).

¶ 69 He responds, first, that his actions did not constitute the unauthorized practice of law

because he did not file an appearance as attorney for TCI in that case. Rather, he appeared

only as a pro se litigant until he learned that pro se representation of a corporation was not

permitted. Second, respondent argues that he did not violate Rule 5.5(a) because he did not

intend to engage in the unauthorized practice of law. Third, he argues that the Administrator

failed to prove that he was suspended from the practice of law before the Seventh Circuit

and, thus, he cannot be found in violation of Rule 5.5(a).

¶ 70 As a threshold matter, there is some question as to whether respondent has been admitted

to the roll of practicing attorneys before the Seventh Circuit. This question was first raised

before the Review Board. The Administrator’s petition to this court contains as an exhibit

a copy of a letter dated April 5, 2011, from Christine O’Donnell, Administrative Analyst for

the Clerk of Court for the United States Court of Appeals for the Seventh Circuit. The letter

states that the Clerk of Court has no record of the admission of Robert C. Thomas, and that

records dating back to the early 1970s were searched.

-12-

¶ 71 In his answer to the petition for leave to file exceptions, respondent describes the letter

as “sculpted and deceptive” and says it was “designed by counsel for the Commission.” He

does not say when he was admitted before the Seventh Circuit, but claims to have appeared

there and presented cases since the 1970s.2 He also states that the address given for him in

the letter was not his address at the time he was admitted, but does not explain why, if he

were a member of the bar in that jurisdiction, it would not have his current address. In

conclusion, he calls the document “irrelevant and spurious.”

¶ 72 Of course, the burden is on the Administrator to prove any misconduct by clear and

convincing evidence. In re Timpone, 208 Ill. 2d 371, 380 (2004). The letter is not

authenticated and it was not in evidence before the Hearing Board. Further, while respondent

might have resolved the confusion on this matter by producing a record of his long-ago

admission before the Seventh Circuit, he has no burden of production. We, therefore, express

no opinion as to whether respondent has been admitted to practice before the Seventh

Circuit.

¶ 73 Turning to the merits of count II, our review of the documents filed by respondent in the

Seventh Circuit case reveals that respondent consistently identified himself as the president

and sole shareholder of TCI and not as its attorney. He acknowledges that he did not inform

the Seventh Circuit of his suspension, but notes that he was careful to present himself to that

court as a pro se litigant, not as a practicing attorney.

¶ 74 We see two possibilities. First, respondent did not know that he could not represent TCI

pro se. He states that he reviewed only the Federal Rules of Civil Procedure and the local

rules of the Seventh Circuit, which did not preclude his pro se appearance. If this is the case,

his skills as a lawyer are called into question because a lay person could find the answer on

the internet in a few seconds. He complains that the limitation on pro se representation is

found in a “court decision,” as if he could not be expected to include judicial opinions in his

legal research. He calls the holding in the case a “decisional restriction,” as if binding case

law is not as authoritative as local rules. A cursory search of a major legal database, however,

reveals hundreds of cases from many state and federal courts imposing the same restriction.

If respondent failed to locate any of these cases, his research was superficial at best.

¶ 75 The second possibility is that respondent knew the corporation could not proceed pro se

and he hoped to finesse the question of his status by not entering an appearance as the

corporation’s attorney while, in effect, acting as such. If so, he engaged in the unauthorized

practice of law before the Seventh Circuit while feigning to appear pro se.

¶ 76 The Hearing Board concluded that even if the first of these two possibilities was true,

respondent engaged in the unauthorized practice of law. Citing In re Cheronis, 114 Ill. 2d

527, 535 (1986), for the proposition that ignorance of the law does not excuse attorney

2

Our own research reveals only one case in the Seventh Circuit in which respondent is listed

as the attorney. See Thomas Consolidated Industries, Inc. v. Koster Group, Inc., 93 F. App’x 926

(7th Cir. 2004). In addition, he appeared pro se in Thomas v. Zaruba, 188 F. App’x 485 (7th Cir.

2006) (appeal from dismissal of petition for writ of habeas corpus, challenging conviction for

driving while license revoked).

-13-

misconduct, the Hearing Board stated that respondent was obligated to educate himself on

the relevant law, especially when his license had been suspended. The Hearing Board also

rejected respondent’s argument that the Administrator was required to prove that he intended

to practice while suspended, again citing Howard, 188 Ill. 2d at 438 (respondent attorney’s

conduct during suspension, including giving advices to clients, is sufficient for finding of

violation). Thus, the Hearing Board concluded, respondent violated Rule 5.5(a).

¶ 77 By its terms, Rule 5.5(a) does not require that the unauthorized practice be intentional

or knowing. It makes no exception for the attorney who is uninformed or confused about his

status. In effect, the rule creates a sort of “strict liability” for attorneys. Because “[i]t is vital

to the well-being of society that an attorney, who is an officer of the court and a part of our

judicial system, should maintain the most scrupulous care in conducting his professional and

business affairs[,] *** [a]n attorney can be subject to discipline though his misconduct is

based merely upon an honest mistake.” (Internal quotation marks omitted.) In re Witt, 145

Ill. 2d 380, 395-96. Thus, when the rule itself does not require a showing of intent or

knowledge, the absence of dishonest intent is appropriately considered in determining the

nature and severity of the sanction imposed. Id. at 395-96.

¶ 78 More recently, in Howard, the respondent attorney was suspended from the practice of

law for two years, with all but the first five months stayed. Howard, 188 Ill. 2d at 426.

During his suspension, he met with clients, accepted fee advances, and offered legal advice.

Id. at 438. He attempted to explain his conduct by stating that he was merely trying to keep

his practice afloat during the relatively brief suspension. Id. at 439. He also noted that he had

not appeared in court, filed any motions, or taken any depositions. Id. at 432-33. This court

concluded that there was no doubt that he intentionally practiced law during his suspension.

Id. at 438. Significantly, our concern was whether he intentionally performed tasks or

provided services that constituted the practice of law, not whether he intentionally violated

the terms of his suspension. Id. at 438-39. That is, even though the respondent believed that

his conduct was permissible because his five-month suspension was not subject to the

strictures of Supreme Court Rule 764, which applies to suspensions of more than six months’

duration (Ill. S. Ct. R. 764 (eff. Aug. 27, 1990)), his “ignorance of the law” did not excuse

his conduct. Id. at 439. We commented that the common maxim that ignorance of the law

is no excuse is “ ‘particularly true in a case where the person who claims lack of knowledge

of a relevant directive is a practicing attorney.’ ” Id. (quoting Cheronis, 114 Ill. 2d at 535).

¶ 79 Thus, it has long been established that it is the individual attorney’s professional

responsibility to make certain that he is licensed to practice in the jurisdiction before

undertaking any professional duties. If there is any doubt whatsoever about his status, a

telephone call to the clerk of this court would resolve the issue for him. We, therefore,

conclude that the Hearing Board’s finding that respondent violated Rule 5.5(a) is not against

the manifest weight of the evidence.

¶ 80 Even if his conduct in the Seventh Circuit case constituted the practice of law, respondent

argues in the alternative that his suspension from the practice of law in Illinois did not mean

that he was suspended from practice before the Seventh Circuit. He notes that Rule 5.5(a)

forbids the practice of law in a jurisdiction “where doing so violates the regulation of the

legal profession in that jurisdiction” (Ill. Rs. Prof’l Conduct R. 5.5(a) (Aug. 1, 1990)), and

-14-

that the Seventh Circuit is its own licensing jurisdiction. He argues that the Administrator

did not prove that his filings violated the regulation of the legal profession in the Seventh

Circuit.

¶ 81 In count II, paragraph 19, of the complaint, the Administrator alleged that “[a]t the time

Respondent prepared and filed the motions described in Paragraphs 17 and 18, above, he was

suspended from the practice of law in Illinois and the Northern District of Illinois and was

ineligible to represent Thomas Consolidated.” In his answer to the complaint, respondent

stated under count II, paragraph 18,3 that he “[a]dmits that he was suspended but denies he

was unable to represent pro se until so advised by the Seventh Circuit Court of Appeals,

which was his status untile [sic] the court ruled on January 3, 2006.” This answer, the

Administrator argues, is an admission that he was suspended from practice in the federal

courts as well as the state courts.

¶ 82 We begin by noting that a federal court of appeals does not license individuals to practice

law. Rather, it admits qualified individuals to practice. An attorney is eligible for admission

to the bar of the Seventh Circuit “if that attorney is of good moral and professional character

and is admitted to practice before the Supreme Court of the United States, the highest court

of a state, another United States court of appeals, or a United States district court.” Fed. R.

App. P. 46(a)(1). In turn, an attorney may be admitted to the bar of the United States District

Court for the Northern District of Illinois if he is a member “in good standing of the bar of

the highest court of any state.” N.D. Ill. Loc. R. 83.10(a).

¶ 83 Thus, if respondent was not admitted to practice before the Seventh Circuit before he

filed the motions, he would not have been eligible for admission to practice before the

Seventh Circuit while his license to practice was suspended in Illinois. If he were already a

member, he would have been “subject to suspension or disbarment” when he was “suspended

or disbarred from practice in any other court.” Fed. R. App. P. 46(b)(1)(A). The rules of the

Seventh Circuit, of which respondent had a duty to be informed, provide that:

“Whenever it is shown to this court that any members of its bar have been disbarred

or suspended from practice, or their names have been stricken from the roll of

attorneys, in any state, or the District of Columbia, they will be forthwith suspended

from practice before this court. They will thereupon be afforded the opportunity to

show cause, within 30 days, why their names should not be stricken from the roll of

attorneys admitted to practice before this court. Upon the attorney’s response to the

rule to show cause, or upon the expiration of the 30 days if no response is made, this

court will enter an appropriate order.” 7th Cir. R. 46(d).

¶ 84 Illinois Supreme Court Rule 764(f)(4) requires that within 21 days of the effective date

of an order of discipline, a disciplined attorney must notify “all other jurisdictions” in which

he is licensed to practice of his “inability, during the period of discipline, to practice law in

the State of Illinois.” Ill. S. Ct. R. 764(f)(4) (eff. Aug. 27, 1990).

¶ 85 Under Circuit Rule 46, respondent would have been suspended “forthwith” as soon as

3

Respondent’s answer contained two paragraphs numbered 18, the second of which

corresponds to paragraph 19 in the complaint.

-15-

it was “shown” to the Seventh Circuit that he had been suspended in Illinois. The only reason

he was not formally suspended in the Seventh Circuit was his own failure to carry out his

duty and obligation to inform that court of his suspension. When he filed the first motion in

the Seventh Circuit case, he was indisputably aware that he was suspended in Illinois and that

he had failed to comply with Supreme Court Rule 764(f)(4). We conclude that respondent’s

practice of law before the Seventh Circuit was misconduct in violation of Rule 5.5(a).

¶ 86 The Administrator also charged that respondent’s unauthorized practice of law violated

Rules 8.4(a)(4) and 8.4(a)(5) as well as Supreme Court Rule 770.

¶ 87 Rule 8.4(a)(4) defines one type of lawyer misconduct as “conduct involving

dishonesty, fraud, deceit or misrepresentation.” Ill. Rs. Prof’l Conduct R. 8.4(a)(4) (eff. July

1, 1990). Because the Review Board concluded that respondent did not violate Rule 5.5(a),

it did not consider whether he violated this rule. However, in its discussion of count I, the

Review Board relied on In re Cutright, 233 Ill. 2d 474 (2009), to conclude that respondent’s

“mere indifference” as to the truth of the certificate of service that he signed could not

constitute a violation of Rule 8.4(a)(4). The Review Board understood Cutright to mean that

a violation of Rule 8.4(a)(4) requires evidence that the conduct was intentional. By this logic,

one could be in violation of Rule 5.5 based on mere indifference to one’s suspended status,

but not be in violation of Rule 8.4(a)(4). We disagree. Cutright does not require such a

narrow reading of the rule.

¶ 88 Attorney Cutright was charged with violating Rule 8.4(a)(4) and other rules as a result

of his preparation of the tax returns of a judge before whom he appeared. He did not disclose

this fact to opposing counsel. Id. at 481-83. The Hearing Board found other violations, but

concluded that the attorney did not intend to deceive when he failed to inform opposing

counsel; “rather, he was unaware of his ethical obligations.” Id. at 483. The Hearing Board

concluded that the Administrator had not proven a violation of Rule 8.4(a)(4). The Review

Board agreed, concluding that “while ignorance is no excuse, neither is it a chargeable

offense in this context.” Id.

¶ 89 This court noted that in past cases, it had found a violation of Rule 8.4(a)(4) when some

act or circumstance showed the respondent’s conduct was “purposeful.” Id. at 489 (citing In

re Rinella, 175 Ill. 2d 504 (1997) (violation found when respondent knowingly provided

false testimony before the Hearing Board)). In contrast, in another case, a violation was not

found in the absence of evidence that the misconduct was intentional. Id. (citing Witt, 145

Ill. 2d 380 (no violation absent evidence that respondent judge’s silence regarding a loan

from an attorney was intended to perpetrate a fraud)). We did not, however, state as a general

rule that Rule 8.4(a)(4) may be violated only by intentional dishonesty, fraud, deceit, or

misrepresentation. We concluded that given the examples of these cases and in light of the

manifest weight of the evidence standard, the Hearing Board’s findings of fact and its legal

conclusion that attorney Cutright had not violated Rule 8.4(a)(4) should stand. Id. at 490. We

emphasized that our result was predicated on the manifest weight of the evidence standard

by saying:

“There is essentially no way to define every act or form of conduct that would be

considered a violation of Rule 8.4(a)(4). Each case is unique and the circumstances

-16-

surrounding the respondent’s conduct must be taken into consideration. That being

said, based on the circumstances in this case, we decline to reverse the findings of the

Hearing Board and the Review Board to conclude that Cutright violated Rule

8.4(a)(4).” Id.

¶ 90 We, thus, left open the possibility that a violation of Rule 8.4(a)(4) could be found

without evidence that the underlying misconduct was intentional. In the present case, the

facts are undisputed that respondent engaged in conduct that constituted the practice of law

while his license was suspended by this court. These acts were not inadvertent; they were

intentional. The effect of his conduct was to perpetrate a fraud upon the court, at least until

the court determined sua sponte that he had been suspended from practice. As such, his acts

constituted misconduct under Rule 8.4(a)(4). See In re Gerard, 132 Ill. 2d 507, 527-28

(1989) (intent to defraud or deceive is not an element of violation of Disciplinary Rule 1-

102(a)(4);4 constructive fraud, which may be inferred from the circumstances, is sufficient).

¶ 91 Rule 8.4(a)(5) defines misconduct as engaging in “conduct that is prejudicial to the

administration of justice.” Ill. Rs. Prof’l Conduct R. 8.4(a)(5) (eff. July 1, 1990). The Hearing

Board found a violation of this rule, but did not explain how respondent’s unauthorized

practice of law before the Seventh Circuit prejudiced the administration of justice when the

client involved was a corporation of which respondent was the president and sole

shareholder. The answer is found in Scandia Down, the case cited by the Seventh Circuit in

its order directing respondent to resolve the matter of his inability to represent TCI. In that

case, the court noted that the sole equity investor in a corporation does “not represent other

interests, such as those of creditors.” Scandia Down, 772 F.2d at 1427. In the present case,

TCI had filed for bankruptcy. Any recovery that might have been made in the litigation

against the Herbsts would have been part of the bankruptcy estate, subject to the claims of

TCI’s creditors. Thus, respondent’s failed attempt to represent TCI potentially harmed not

only his own interests, but also the interests of TCI’s creditors. As such, his misconduct was

prejudicial to the administration of justice.

¶ 92 The Hearing Board also found a violation of Supreme Court Rule 770. Supreme Court

Rule 770 is not itself a Rule of Professional Conduct. Rather, it is contained in article VII,

part B, of our rules, which governs “Registration and Discipline of Attorneys.” Rule 770 is

titled “Types of Discipline” and provides that “[c]onduct of attorneys which violates the

Rules of Professional Conduct contained in Article VIII of these rules or which tends to

defeat the administration of justice or to bring the courts or the legal profession into disrepute

shall be grounds for discipline by the court.” Ill. S. Ct. R. 770 (eff. Apr. 1, 2004). The rule

then lists eight levels of discipline ranging from disbarment to reprimand. Thus, one does not

“violate” Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon

proof of certain misconduct. We conclude that based on his violations of Rules 5.5(a),

8.4(a)(4), and 8.4(a)(5), respondent is subject to discipline by this court pursuant to Rule 770.

4

The Disciplinary Rules were replaced on August 1, 1990, by the Rules of Professional

Conduct. DR 1-102(a)(4) was the precursor to Rule 8.4(a)(4).

-17-

¶ 93 Count III

¶ 94 Commission Rule 54 states:

“When the Administrator concludes that there is insufficient evidence to establish

that the respondent has engaged in misconduct, the Administrator shall close an

investigation. The Administrator shall notify the complaining witness of his decision

to close an investigation. Closure by the Administrator shall not bar the

Administrator from resuming the investigation if circumstances warrant. The

Administrator shall report to the Commission actions taken under this rule.” Attorney

Registration and Disciplinary Comm’n R. 54.

¶ 95 In the present case, the Administrator gave the required notice to attorney Ropiequet, the

complainant, stating that the reported conduct appeared to have been an isolated instance and

had since ceased. The Administrator also gave the required notice to respondent, placing him

on notice that the investigation could be reopened “if circumstances warrant.” Thus, the

Administrator fully complied with the procedural directives of this rule.

¶ 96 The Review Board, however, interpreted Commission Rule 54 to mean that “a closed

investigation can be reopened only when the Administrator acquires new evidence

concerning the conduct that was the subject of the closed investigation” and, further, that the

rule is not intended to allow the Administrator “to change his mind merely because there is

an indication that the Respondent may have engaged in misconduct in an unrelated manner.”

As a result, because it concluded that it was improper for the Administrator to reopen the

2005 investigation, the Review Board did not reach the merits of this charge.

¶ 97 Our analysis of count III must address two separate issues: (1) Did the Review Board

correctly interpret Commission Rule 54? And (2) if not, did the Hearing Board properly find

that respondent engaged in the unauthorized practice of law when he represented the

Phillipses in proceedings after October 17, 2005?

¶ 98 We reject the Review Board’s interpretation of Commission Rule 54 for three reasons.

First, the language of the rule does not require such a narrow reading. Second, the Review

Board reads Commission Rule 54 as creating substantive rights for respondents rather than

as setting out procedures for the Administrator to follow. Third, the mission of the

Commission and the duties assigned to the Commission by this court require that the

Administrator be permitted to reopen a closed investigation for good cause, including, but

not limited to, newly acquired evidence regarding the earlier alleged misconduct.

¶ 99 Commission Rule 54 provides that an investigation “shall” be closed if there is

insufficient evidence to establish misconduct. The rule instructs the Administrator to

terminate an investigation, with notice to all interested parties, if the investigation has not

yielded evidence that would justify referral to the Inquiry Board. In contrast, Commission

Rule 55 provides that “[w]hen the Administrator concludes that there is sufficient evidence

to establish that the respondent engaged in misconduct or the Administrator believes

consideration by the Inquiry Board is warranted, the Administrator shall refer the matter to

the Inquiry Board.” Attorney Registration and Disciplinary Comm’n R. 55. Thus, these two

rules create a procedural mechanism that requires the Administrator to assess the state of the

evidence in each case and either close the investigation or refer the matter to the Inquiry

-18-

Board. This procedure carries out the policy of the Commission, as set out in the preamble

to the Commission rules: “The courts, the public, the bar, and the respondents have a vital

interest in an early determination of any charge which bears upon the fitness of an attorney

to practice his profession.” Attorney Registration and Disciplinary Comm’n R. 1, Preamble.

¶ 100 Commission Rule 54, however, does not limit the circumstances in which the

Administrator may determine that an investigation should be closed. As the Administrator

notes, an investigation may be closed for many reasons, only one of which is insufficient

evidence of misconduct. The volume of complaints received by the Commission requires the

Administrator to set priorities and allocate resources. An investigation into allegations of less

serious misconduct may be closed so that other, more serious allegations may be pursued.

In such cases, the mere fact that a complaint was filed with the Commission may be

sufficient to put the respondent on notice not to repeat the conduct at issue. Or, as in the

present case, the Administrator may close an investigation after concluding that the alleged

misconduct was an isolated incident, not likely to be repeated, and that respondent has ceased

the offending conduct.

¶ 101 Similarly, there are several circumstances that may justify reopening of a closed

investigation aside from the acquisition of new evidence regarding the subject of the original

complaint. Such circumstances include a decision by the Oversight Committee of the

Commission or the filing of a new complaint against the same respondent.

¶ 102 The role of the Oversight Committee is to “assist the Commission in conducting an

internal quality review of a representative sample of investigative matters concluded by the

Administrator without reference to the Inquiry Board.” ARDC Board Member Roster,

Oversight Comm., http://www.iardc.org/bm_oversightcommittee.asp (last visited Jan. 17,

2012). Thus, after the Administrator has closed an investigation and given the notices

required by Commission Rule 54, the Oversight Committee’s quality review could result in

the matter being reopened.

¶ 103 In addition, a new complaint of similar misconduct may suggest that the attorney is

engaging in a pattern of misconduct, making the subject matter of the earlier investigation

relevant. A new complaint about a different form of misconduct may reveal that the

respondent attorney is struggling with alcoholism, gambling, or other issues that affect his

ability to practice, placing the subject matter of the earlier investigation in a new light.

¶ 104 The language of Commission Rule 54 does not define or limit the circumstances that

warrant the reopening of an investigation. This decision has been placed by this court in the

sound discretion of the Administrator, whose actions are subject to review by the Oversight

Committee, the Inquiry Board, and ultimately this court.

¶ 105 Not only is the Review Board’s narrow reading of Commission Rule 54 not required by

the language of the rule, such a narrow reading overlooks the procedural nature of the

Commission rules, improperly imbuing the Commission with the authority to promulgate

substantive rules regarding attorney discipline.

¶ 106 Commission rules are promulgated pursuant to Supreme Court Rule 751(e)(2), which

provides that the Commission shall have the duty “to make rules for disciplinary proceedings

not inconsistent with the rules of this court.” Ill. S. Ct. R. 751(e)(2) (eff. Oct. 13, 1989).

-19-

Because these rules are to govern “proceedings,” they are necessarily procedural, rather than

substantive, in nature. See In re Mitan, 75 Ill. 2d 118, 125 (1979). As such, these rules set

no standards for attorney conduct and confer no rights upon attorneys.

¶ 107 Respondent’s arguments are predicated on a misunderstanding of the purely procedural

nature of the Commission Rules. He argues that the “obvious purpose of Commission Rule

54 is to remove the threat of prosecution that any ARDC investigation implies–absent a

change in circumstances,” and accuses the Commission of “seeking omniescence [sic] and

omipotent [sic] power over attorneys–for their entire lives.”

¶ 108 In accordance with Commission Rule 54, respondent received notice that the

investigation had been closed and he was placed on notice that it could be reopened.

Apparently, respondent believes that the notice he received from the Administrator pursuant

to the rule conferred upon him a substantive right, comparable to double jeopardy protection,

that prevents the Administrator from reexamining the alleged misconduct in the future absent

new evidence regarding the particular incident. He cites no authority for placing such

substantive weight on the words of a Commission rule. Indeed, no such authority exists

because the Commission is not empowered by Supreme Court Rule 751(e)(2) to create

substantive rights via its procedural rulemaking.

¶ 109 Finally, our intent that the Administrator have discretion in the closure and resumption

of investigations is consistent with this court’s long-standing vision of the role of the

Commission. As noted in Mitan, this court “has the inherent power to regulate the admission

of attorneys to the practice of law and to discipline attorneys who have been admitted to

practice before it.” Mitan, 75 Ill. 2d at 123. The Commission and its officers “serve only as

agents of this court in administering the disciplinary functions that have been delegated to

them.” Id. at 124. In effect, the Commission and its officers serve investigatory and screening

functions, delegated to them by this court. The proceedings before the Hearing Board and the

Review Board are “advisory only” to this court. Id. Therefore, “because of the nature of the

proceedings before those to whom we have delegated the authority to act, we will not

consider technical objections as to the practice and procedures before them, nor can such

technical objections bind us or limit our authority to act.” Id.

¶ 110 In Mitan, the Commission failed to comply with a Commission rule that required a

hearing within 90 days of service of a complaint upon a respondent attorney. This court

rejected the respondent’s argument that the rule established “a mandatory statute of

limitations, a limitation which would effectively bar this court from disciplining an attorney”

merely because of an inadvertent procedural error by the Administrator’s office. Id. At that

time, Supreme Court Rule 753(c) (Ill. S. Ct. R. 753(c) (eff. May 21, 1975)), required that the

Hearing Board set a hearing date “not earlier than 21 days after the filing of such complaint.”

Our rule did not place a limit on the length of time between the filing of the complaint and

the hearing. Id. at 124-25. Thus, although the Administrator had not complied with the

applicable Commission rule, he was in full compliance with this court’s rules. This court

viewed the Commission rule “not as a limitation on the authority or jurisdiction of this court,

but as a procedural rule of the Commission directing the Administrator to conduct orderly

and timely proceedings with due regard for the rights of the attorney under investigation.”

Id. at 125. The 90-day time limit was “not mandatory” and could not be construed “to be a

-20-

means of implementing a right to a speedy trial.” Id. The failure to comply with the rule did

not “deprive this court or its agents of the right or the power to further consider the charges

against the respondent.” Id.

¶ 111 Thus, the “right or power” of our agent, the Administrator, to further consider charges

against a respondent attorney does not derive from the Commission’s procedural rule, but

from our delegation to the Administrator, under Supreme Court Rule 752(a), of the

responsibility to “on his own motion, on the recommendation of an Inquiry Board or at the

instance of an aggrieved party, investigate conduct of attorneys which tends to defeat the

administration of justice or to bring the courts or the legal profession into disrepute.” Ill. S.

Ct. R. 752(a) (eff. Mar. 17, 1988). This responsibility is constrained by the constitutions of

the United States and the State of Illinois and the rules of this court–not by the Commission’s

own procedural rules.

¶ 112 Having determined that it was permissible for the Administrator to reopen the

investigation into respondent’s representation of the Phillipses, we turn to the question of

whether he engaged in the unauthorized practice of law when he represented them at a

hearing, conducted a deposition, and appeared with them at their depositions after his

suspension went into effect.

¶ 113 Rule of Professional Conduct 5.5(a) provides that a “lawyer shall not practice law in a

jurisdiction where doing so violates the regulation of the legal profession in that

jurisdiction.” Ill. Rs. Prof’l Conduct R. 5.5(a) (Aug. 1, 1990). It is undisputed that respondent

practiced law in Du Page County by appearing in court to represent the Phillipses, appearing

with them at their depositions, and conducting the deposition of attorney Ropiequet after his

suspension went into effect on October 17, 2005. Respondent argues that it is also undisputed

that he believed that his filing of a “Petition for Hearing/Rehearing” stayed the suspension

order.

¶ 114 Correspondence back and forth between respondent and counsel for the Administrator

continued, with his rejecting every effort to inform him of his status. The October 20, 2005,

letter from counsel advised him that the suspension was effective on October 17, 2005, and

that the filing of an appeal does not automatically stay or recall the mandate. He describes

this as merely “her opinion” and states that “she erroneously described the filing as a Petition

for Rehearing–when in fact it was a petition for Hearing/Rehearing.” Respondent elected not

to seek independent legal advice from someone familiar with the applicable rules or to

inquire directly of the clerk of the Supreme Court as to his status.

¶ 115 Although respondent knew that an order of suspension had been entered with an effective

date of October 17, 2005, respondent chose not to take that simple step of verifying his

status, even after the question was posed to him by opposing counsel and by a judge at a

hearing. Instead, he incorrectly informed the judge that his suspension was stayed and now

argues that the judge “permitted” him to appear, as if it were the judge’s responsibility, not

his own, to verify his status.

¶ 116 He attempts to excuse his conduct by stating that he “initially assumed” that “as in all

other cases,” the suspension order was “automatically stayed.” Similarly, he states that when

counsel for the Administrator called Supreme Court Rule 771 to his attention, he “examined

-21-

the Rule” and concluded that it did not apply because his petition asked for a “hearing” as

well as “rehearing.” He claims that he “rationally concluded” that when this court ordered

the Commission to file a response to his petition, this meant that his petition was being

considered pursuant to Rule 753(e)(5)(a)(iii).

¶ 117 His conclusion was not “rational.” He either failed to understand or ignored the

procedural posture of this case at the time he filed his petition.

¶ 118 Rule 753 describes the functions and procedures of the Inquiry, Hearing, and Review

Boards of the Commission. Under Rule 753(e), review of a Review Board report is sought

by filing a petition for leave to file exceptions with this court. Rule 753(e)(5) describes the

rulings this court might make on such a petition: (a) “allows exceptions to an order or report

of the Review Board,” or (b) “denies leave to file exceptions.” If this court allows

exceptions, it may: (a)(i) “enter a final order,” (a)(ii) “remand[ ] the matter with directions,”

or (a)(iii) “accept the matter for further consideration.” Ill. S. Ct. R. 753(e) (eff. Sept. 1,

2006).

¶ 119 Respondent’s petition, whether styled a “Petition for Hearing/Rehearing” or otherwise,

sought review of this court’s October 17, 2005, order of suspension. This order followed our

allowing the Administrator’s petition for leave to file exceptions, pursuant to Supreme Court

Rule 753(e)(1), after the Review Board recommended a 12-month suspension. Thus,

respondent’s petition was not a petition to this court seeking review of a Review Board report

and Rule 753 was not implicated. Further, our ordering the Administrator to respond to his

petition was not an acceptance of the matter for further consideration and respondent had no

reasonable basis for assuming so.

¶ 120 Rather, the governing rule at the time respondent filed his petition was Supreme Court

Rule 771, “Finality of Orders and Effective Date of Discipline”:

“(a) Finality. All orders imposing discipline pursuant to these rules, except orders

entered in cases that were accepted by the court for further consideration pursuant to

Rule 753(e)(5)(a)(iii), are final when filed by the clerk of the court, and the mandates

in all such cases shall issue at the time the orders are filed. No petition for rehearing

pursuant to Rule 367 may be filed in such case, nor will any motion or other paper

submitted after an order is filed automatically stay or recall the court’s mandate. The

finality of orders imposing discipline entered in cases accepted by the court for

further consideration pursuant to Rule 753(e)(5)(a)(iii) shall be governed by Rules

367 and 368.” Ill. S. Ct. R. 771(a) (eff. Apr. 1, 2004).

¶ 121 As noted, the clause “except orders entered in cases that were accepted by the court for

further consideration pursuant to Rule 753(e)(5)(a)(iii)” is inapplicable in the circumstance

in which this court has already entered a final order pursuant to Rule 753(e)(5)(a)(i) after

allowing the Administrator’s petition for leave to file exceptions. The operative language is

that no motion or paper submitted after an order is filed will “automatically stay or recall the

court’s mandate.”

¶ 122 We conclude that respondent violated Rule of Professional Conduct 5.5(a) by his

representation of the Phillipses after October 17, 2005. We cannot know whether he

subjectively believed that his suspension had been stayed, but if he did believe so, his belief

-22-

was entirely unreasonable. He willfully ignored all attempts to inform him of his status. His

reading of the rules was self-serving and incorrect. Further, he made no effort to ascertain

the answer directly from the clerk of this court.

¶ 123 In addition, respondent’s unauthorized practice of law involved dishonesty or

misrepresentation in violation of Rule 8.4(a)(4), because respondent willfully ignored every

attempt to inform him that his actions violated his suspension and chose, instead, to continue

to engage in the practice of law. The fact that he may have convinced himself that his

suspension was stayed does not alter the underlying dishonesty because his belief, even if

sincere, was entirely unreasonable. Further, his conduct was prejudicial to the administration

of justice, in violation of Rule 8.4(a)(5), because it placed the interests of his clients in

jeopardy. See, e.g., Scandia Down, 772 F.2d at 1427 (attorney’s unauthorized representation

of defendant could have resulted in default judgment for plaintiff). Thus, he is subject to

discipline pursuant to Supreme Court Rule 770.

¶ 124 Appropriate Sanction

¶ 125 The Hearing Board, which found all three counts proven, recommended a two-year

suspension. The Administrator asks for a three-year suspension, until further order of this

court, noting that as in the earlier case that resulted in his 18-month suspension, respondent

rationalizes his misconduct and denies all wrongdoing. He places blame on others, yet

refused to accept others’ efforts to forestall his misconduct.

¶ 126 Although no violation of Rule 5.5(a) can be said to be minor, respondent’s violations are

certainly not as serious as they might have been. The party most affected by the misconduct

in count II was TCI, respondent’s own bankrupt corporation. The violations in count III

occurred within a few days of the effective date of the suspension and respondent terminated

his representation of the clients immediately upon our denial of his motion for

reconsideration.

¶ 127 On the other hand, his conduct as to count II was calculated to conceal from the Seventh

Circuit that he had been suspended by this court, and as to count III, he willfully ignored his

suspension, even when it was raised by the circuit court and opposing counsel and even after

he was correctly informed by counsel for the Administrator that continued representation of

clients was a violation of his suspension. In addition, he continues to deny any misconduct

and refuses to accept any responsibility for his actions.

¶ 128 We conclude that a suspension for one year is sufficient discipline for respondent’s

misconduct.

¶ 129 CONCLUSION

¶ 130 Respondent Robert C. Thomas is suspended from the practice of law for one year.

¶ 131 In addition to complying with Supreme Court Rule 764(f)(4) by notifying “all other

jurisdictions in which [he] is licensed to practice law” (Ill. S. Ct. R. 764(f)(4) (eff. Aug. 27,

1990)), of his suspension, respondent shall verify his status before the United States Court

of Appeals for the Seventh Circuit. Within 30 days of the effective date of this order, he shall

-23-

submit to this court and to the Administrator authenticated documentation of the date of his

admission to the roll of attorneys for that court and his current status there. If he was not a

member of that court at any time he appeared there as an attorney, he will self-report that fact

to the Seventh Circuit, this court, and the Administrator.

¶ 132 Respondent suspended.

-24-