In Re Bossov

MR. JUSTICE KLUCZYNSKI, dissenting:

I cannot agree that the evidence requires the sanction imposed by the majority. The evidence pertaining to the solicitation charges is not clear and convincing.

At the outset it should be noted that not one of respondent’s clients expressed dissatisfaction with the services rendered by him, and all apparently admitted going to see him voluntarily. These individuals were ferreted out by a multitude of insurance investigators identifying themselves only as agents of the Chicago Bar Association. The investigation lasted several months.

John Burns, one of the investigators, testified that he worked for the American Insurance Association, which consisted of 200 insurance companies. Exchanges of information were also made with the Allstate and State Farm insurance companies. The investigation was paid for by the insurance association. Each investigator was issued an identification card indicating that the investigation of the closed cases was authorized by the Chicago Bar Association. These credentials were subsequently returned to the supervising agent of the insurance association. As the majority notes, the insurance association report pertaining to respondent was completed in 1961; yet the complaint against him, initially consisting of 16 counts and involving 30 former clients sought out by the insurance investigators, was not filed until 1965. These charges were eventually reduced to seven counts because of evidentiary insufficiency, and the number of clients who testified was similarly lessened.

In regard to the charges of solicitation and procurement, the majority characterizes the incriminating evidence against respondent as mostly circumstantial. Only in two of the five cases in which solicitation was charged was there any attempt to identify the individual as either the respondent (count VII) or respondent’s acquaintance (count VIII).

In count VII the client (Frazen) said she was approached by respondent, yet she gave an inaccurate description of him and admitted her memory was uncertain. In count VIII the client (Nehrke) identified a young college student as the person who recommended respondent, but the party, who was identified, refuted the matter. Nehrke also appears to have identified another person who visited him the evening of the accident, but a stipulation was made that this person was attending an Eastern law school at the time the solicitation purportedly occurred. Nehrke admitted that he knew he would be making a false insurance claim.

The other three charges involve unidentified individuals who approached the clients. Respondent disputed any knowledge of solicitation in these matters. In count X, the client (Frey) said he bribed the investigating police officer in order to avoid being taken to the police station because he did not possess a driver’s license at the time of the accident. Frey represented that he signed a retainer agreement given him by the unknown party who came to his house and that he saw this agreement on respondent’s desk when he later visited his office. However, Frey said that respondent requested that he sign another retainer agreement.

The evidence related to solicitation lacks the clear and convincing nature necessary to justify the majority’s order of suspension. In re Krasner, 32 Ill.2d 121 , does not persuade. There the evidence showed an identified individual was paid $20,000 for “referring” about 75 personal injury cases to the attorney. The proof in that case of solicitation was far greater than that adduced against respondent.

The charges pertaining to the accounting are also somewhat contradicted. For example, the majority concludes that Lancaster (count I) received only $1,085 in settlement of his claim. Amicus suggests that the proper amount would have been $1,491.66. The abstract indicates that Lancaster admitted receiving about $1,500 as a result of the case.

It appears that more accurate accounting methods should have been utilized by respondent, but it should be reiterated that his clients expressed satisfaction with his services. Moreover, even though there may be some confusion as to the actual amounts paid and when payment was made in a limited number of cases, I believe that the confusing circumstances present a mitigating factor in determination of the sanction.

Even if the evidence were to be considered adversely to respondent, prior decisions tend to establish that the majority’s sanction is excessive. This court has recognized that a lengthy suspension envisions severe consequences to a lawyer’s career. (In re Donaghy, 402 Ill. 120, 123-24 .) In the previously mentioned case of In re Krasner the facts of wrongdoing were far more aggravated than any which might have been demonstrated in the present case. Krasner was suspended for one year. In the case of In re Damisch, 38 Ill.2d 195 , the misconduct could be described as qualitatively similar to that demonstrated in this case and the respondent was not suspended. Mitigating factors were, established in Damisch that were akin to those presented on behalf of the 51-year-old respondent in this case. I would therefore favor a reduction of the sanction imposed to one more in keeping with our decisions in Krasner and Damisch. A reduction would be commensurate with the public’s protection and would still maintain the dignity of the legal profession.

MR. JUSTICE GOLDENHERSH joins in this dissent.