The opinion
JUSTICE SIMON, also dissenting:
I cannot agree that discipline is warranted in this case, and I therefore dissent.
The record shows that Frank Masters did nothing worse than protect his client, an innocent victim of a criminal extortion, in the only way he believed was realistically available. He advised his client to submit to the demands of an extortionist rather than risk the safety of its employees. At the client’s request he agreed to act as a go-between for the purpose of delivering the funds, since the extortionist refused to deal directly with the client. There is nothing in the record to suggest that his conduct was motivated by anything other than a legitimate concern for the safety of his client’s employees, as well as his son and himself. As such, he did nothing illegal, immoral or unethical. Under the circumstances, his course of action may well have been the only reasonable one available. To discipline Frank Masters for his conduct would be to punish a man for refusing to sacrifice the safety of his client’s employees for the sake of a pristine professional image.
Although the majority opinion explains the circumstances surrounding the extortion, a little more detail is needed to understand that Masters’ conclusion that compliance was the only safe course of action for his client was a reasonable one. When William Griffin, an executive officer of the Hoffman-Rosner Corporation, came to Masters in 1969 and told him of Arambasich’s armed threats against his company and its employees, Masters could not have been too surprised. As a former State’s Attorney, Masters was fully aware of Arambasich’s propensity for violence. He knew, for example, that Arambasich and some fellow members of the ironworkers union had engaged in a “jurisdictional dispute” with members of the carpenters-joiners union at a job site a few years back. Arambasich himself pistol-whipped a carpenter foreman. When Masters tried to persuade the carpenter foreman to prefer charges against Arambasich, the carpenter responded, “Mr. Masters, I’m hurt, but I’m not dead. No, thank you.” Masters also knew that, on another occasion, Arambasich and others invaded a construction site armed with clubs. At least one man was severely beaten. Again, out of fear, no one was willing to press charges. The same man was later beaten again. On still another occasion, Arambasich and others appeared at the manager’s office of a Mobil Oil Company refinery and shot holes in the ceiling.
Masters’ son, who worked summers as an ironworker under the jurisdiction of Arambasich’s union, gave him further reason to fear Arambasich. He told his father that he had seen Arambasich at various job sites shouting at contractors or other labor leaders while holding a handgun. He also told his father that a relative of Arambasich had told him that during World War II, while guarding six POWs, Arambasich shot and killed them all after one of them spit on him.
In my opinion, Masters had every reason to believe Arambasich would make good on his threats. As a former State’s Attorney, he was also aware that victims of Arambasich’s violence had not always been adequately protected from further violence in the past. In fact, it would be very difficult to guarantee protection to the large group of potential victims in this case. Unfortunately, the law is not always able to act fast enough or effectively enough to protect and reassure victims of extortion, and his professional experience taught Masters to be aware oh this shortcoming.
Several witnesses corroborated Masters’ impression of Arambasich. One witness testified to an incident involving a confrontation between Arambasich and a building contractor during which Arambasich pulled a gun from his briefcase and said, “Now, let’s negotiate.”
The Review Board itself noted, “Respondent had a legitimate basis for his fears of retaliation against both his client, himself and his family. ” This was borne out by the fact that when Masters did come forward to cooperate with the United States attorney in 1974, he received two threats on his life.
The majority, however, seems unwilling to believe that Masters remained silent for four years out of concern for the safety of his client’s employees, his son and himself. After assuming arguendo that Masters’ fear was reasonable at the time of the first payment, my colleagues state that they find it difficult to explain his failure to report the extortion until it had gone on for four years. Immediately after that statement, the majority notes that the evidence presented showed no change of circumstances which diminished the alleged danger.
The majority’s argument can be interpreted two ways. First, although the Administrator may have failed to prove lack of reasonableness initially, the court was not satisfied Masters had reasonable grounds for fear at the time of the later payments. Overlooking questions of burden of proof, if that is the majority’s argument, it has answered its own question by noting that circumstances did not change between the first payments and later payments. As far as Masters knew, Arambasich was just as likely to harm someone if the later payments were unpaid as he would have been earlier. Reporting the crime to the police at a later date could very well- prove to be an inadequate safeguard.
The majority’s argument might also be interpreted to mean that since, in 1974, Masters did report the crime even though circumstances had not changed significantly, the initial assumption that he originally acted out of fear of great bodily harm must be unfounded. If Masters was not originally acting out of fear of great bodily harm to his client’s employees, himself and his son, I see no logical explanation for what he did. It obviously did not benefit him in any way to advise and assist his client in handing over money to a man he had been trying to prosecute for years. No evidence was presented that indicates any other motive. Moreover, even a cursory view of the evidence shows his fear was eminently reasonable. The fact that Masters later discontinued the payments and no reprisals occurred is not evidence to the contrary. He decided to test the water. He called Arambasich on the telephone and told him he thought the extortion should stop, and Arambasich agreed. He sensed the danger had played itself out and decided to take the risk. He was lucky, because he was right.
The court is then faced with the question of whether a charge of a breach of ethics can be sustained under such circumstances.
First it should be emphatically noted that Masters has committed no crime. The majority acknowledges that Masters is not guilty of misprision of felony, as the Federal judge who recommended that his conduct be investigated apparently thought. Misprision of felony requires an affirmative act of concealment. (See United States v. Daddano (7th Cir. 1970), 432 F.2d 1119, 1124 .) Nor is he guilty of aiding and abetting an intimidation on the grounds that he delivered the funds. Masters was acting on behalf of the victim, and a victim cannot be guilty of aiding and abetting an intimidation. (Ill. Ann. Stat., ch. 38, par. 5-2 & Committee Comments, at 288 (Smith-Hurd 1972).) It would be absurd to hold a person in Masters’ position, whose purpose is to protect the victim of an intimidation by acting as a buffer rather than to promote the interests of the extortionist, guilty of aiding and abetting the intimidation, and no one has suggested it.
The majority apparently adopts a rule, based on its interpretation of Rule 1 — 102(a)(5), that attorneys have a special duty to report or prevent crimes and not to become involved in them in any way that facilitates the crime no matter what their motivation. The nature of this new duty is not completely detailed. It is unclear whether the court considers the advice of silent compliance, or Masters’ involvement in the crime as the deliveryman, or both together, to constitute the violation. It is also unclear whether an attorney should report such a crime even over his client’s express instructions to the contrary. Careful lawyers are given no guidance. Rule 1 — 102(a)(5) does not give that guidance. That rule only provides that a lawyer shall not “engage in conduct that is prejudicial to the administration of justice.” (79 Ill. 2d R. 1-102(a)(5).) Previously the rule has been applied only in cases in which the conduct complained of related directly to a pending or contemplated legal proceeding. The majority extends the rule for the first time here.
Whatever the merits of a rule of conduct that requires an attorney to report or prevent any crimes he becomes involved in and prohibits him from facilitating them, it should not be applied in this case. Here the attorney was motivated by his concern for the safety of his client’s employees, himself and, for a time, his son. His conduct was based on the reasonable belief that any other course of action would result in serious physical harm to them. Such conduct is not only not blameworthy, it must be encouraged, for however unacceptable we find lawyers who counsel their clients to allow themselves to be victimized, they are considerably more acceptable than attorneys who permit their clients to suffer physical injury. A disciplinary rule that forces an attorney to choose between his innocent client’s safety and his career is unrealistic. How should we judge a lawyer counseling the parents of a kidnaped child to pay ransom rather than risk the loss of the child at the hands of a kidnaper who has threatened death if the authorities are notified?
One of the most disturbing aspects of the majority’s opinion is the effect it may have on the ability of persons in distress to consult a lawyer. Usually a lawyer is the one person one can expect to be able to speak openly with and be assured of confidentiality. Under the majority’s opinion, a person in the position of Hoffman-Rosner could consult anyone he chose for advice on what to do, except a lawyer, because lawyers alone may be required to inform the authorities, regardless of the danger to clients.
The majority cites In re Rosenthal (1978), 73 Ill. 2d 46 , to support its contention that discipline is warranted here. That case involved the bribery of a public official who told the two lawyers involved that unless they paid him they would not receive the zoning changes that they believed their client was entitled to. Paying a city official to obtain a zoning change is a criminal offense, and a lawyer may not counsel or assist his client in committing a crime. In contrast, there is nothing illegal about paying someone not to shoot you. In addition, although the lawyers in Rosenthal argued that they were forced by threats of violence to comply with the employee’s demands, this court found that no threat of any kind occurred until well after the two lawyers had become deeply involved in the extortion/bribery case. Moreover, the court was wholly unconvinced that any real threat occurred at all. The court stated, “[R] equiring the extortionist to produce proof of his misdeeds as a condition of payment does not seem the likely act of individuals acting under duress. Rather, it appears to be the act of persons seeking a guarantee that their client has received the service for which they had bargained.” In re Rosenthal, in my reading of it, has nothing to say on the critical issues of the instant case.
I would not discipline the respondent here.