The opinion
JUSTICE UNDERWOOD, dissenting:
It is undisputed that respondent deposited the $40,000 down payment in his personal checking account upon which both he and his wife could draw checks. That account was, prior to any accounting between respondent and his client, not only reduced below $40,000 but was overdrawn. Respondent defends this action as not improper because, he testified, his client and he had agreed the down payment was to be respondent’s, subject to a later accounting, as reimbursement for fees and money owed him by the client.
While the client was not available to testify, and respondent’s testimony was not directly contradicted, the fact that the client subsequently found it necessary to sue him and that respondent settled that suit for approximately double the amount he originally tendered his client seems to indicate the client did not-understand the agreement as respondent did.
In my judgment, the hearing panel aptly characterized this situation in its recommendation when it stated:
“What stands out is this: When a lawyer closes a real estate deal for a client, no matter how many hats the lawyer wears, his duty as a lawyer is to put those funds in a trust account and never to disburse them without the prior certain approval of a client. Respondent violated this essential rule. He cannot escape his obligation as a lawyer by explaining that he was also a creditor, vendor and negotiator.
His conduct has put our profession in disrepute.”
Although neither the hearing nor review board so found, the majority concedes the evidence would support a finding of conversion. There is, in my opinion, no question but that respondent converted his client’s money, since the client had not consented to dissipation of the entire $40,000 by respondent without an accounting, and that is exactly what occurred when respondent overdrew the account. The circumstances surrounding a conversion, together with other factors, determine the discipline to be imposed. Obviously the circumstances here are not as aggravating as in some cases, but I do not regard as adequate the reprimand ordered by the hearing panel or the censure ordered by the court. In re Grant (1982), 89 Ill. 2d 247 ; In re Schlax (1980), 81 Ill. 2d 66 ; In re Brody (1976), 65 Ill. 2d 152 ; In re Bloom (1968), 39 Ill. 2d 250 .
JUSTICE MORAN joins in this dissent.