The opinion
MR. JUSTICE DOOLEY, dissenting:
We do not believe this case justifies discipline. In our opinion a grave injustice has been done respondent.
Here the conduct of the Attorney Registration and Disciplinary Commission is certainly no cause for applause. This court, however, has compounded the Commission’s wrong. After discussing the two charges on which respondent was tried, the court has considered a matter, not the subject of a complaint, of which respondent had no notice, hearing or opportunity to present his side, in violation of our Rule 753(b) (65 Ill. 2d R. 753(b)) that “[t]he complaint shall reasonably inform the attorney of the acts of misconduct he is alleged to have committed.” This is frightening when it is remembered that this court, in most instances, is the last bastion of that elementary foundation of justice, due process.
The proceedings before the Commission were bizarre to say the least. Count I, more properly termed “round 1,” consisted of charges that Madsen and two associates, Janeo vie and Joost, sent out a brochure allegedly containing self-laudatory statements and giving unsolicited legal advice.
This was a publication of the Illinois State Bar Association, and it was from this reputable group that the numerous copies were obtained. Respondent, in requesting the brochures, advised the State Bar Association of their intended use. Such “advertising” allegedly was unethical. It was undisputed that this bar publication was mailed only to clients and that no legal business was generated by it. We fail to perceive how mailing an Illinois State Bar publication to one’s clients can be improper.
Apart from the recent United States Supreme Court decision in Bates v. State Bar (1977), 433 U.S. 350 , 53 L. Ed. 2d 810 , 97 S. Ct. 2691 , we do not believe this was improper. The Code of Professional Responsibility adopted by the American Bar Association and referred to in In re Spencer (1977), 68 Ill. 2d 496, 500 , as well as by the United States Supreme Court in Bates ( 433 U.S. 350 , 369, 53 L. Ed. 2d 810, 826 , 97 S. Ct. 2691, 2700-01 ), recogniz.es that “it is not improper for a lawyer to volunteer such advice and render resulting legal services to *** former clients (in regard to matters germane to former employment), and regular clients.” ABA Code of Professional Responsibility EC 2—4 (1976).
Formal Opinion No. 213 of the American Bar Association Committee on Professional Ethics (1941), decided under the predecessor of the current code, the Canons of Professional Ethics, Canon 27, involved the propriety of a patent firm circulating a pamphlet entitled “Law News Bulletin.” It included significant features of current legislation, administrative rules, and important decisions in the patent field. The circumstance was that there was no impropriety in a lawyer advising his regular clients on anything which may affect the clients’ interest so long as the communication is limited to such information.
In In re Ratner (1965), 194 Kan. 362 , 399 P.2d 865 , amongst other charges there, the respondent was charged with soliciting law business by newsletters sent to the officers of a union, whom respondent represented. The court, in the opinion discharging respondent, observed:
“The newsletters, by means of which respondents are alleged to have advertised their wares, were sent to the officers of union clients represented by their firm. Several of the letters are in evidence. They contain no reference to any cases handled by the respondents. Their contents are confined to rulings of boards, commissions and courts on problems of interest to union labor, together with proposed and completed legislation important to the Brotherhood, and other items which might affect unions and their members. The respondents cite Opinion 213 of the Committee of Professional Ethics and Grievances as permitting such practice. After studying this opinion, we agree that sending of newsletters of the above type to regular clients does not offend Canon 27.” 194 Kan. 362, 371 , 399 P.2d 865, 872-73 .
So here the letters were not sent to third parties, but only to past and present clients of respondent’s firm. More than that, these were published under the aegis of the State Bar Association — a circumstance indicative of their intended purpose, to aid the public.
Probable jurisdiction was noted on October 4, 1976, in Bates v. State Bar (1976), 429 U.S. 813 , 50 L. Ed. 2d 73 , 97 S. Ct. 53 . Yet, on December 13, 1976, in its “Report and Recommendation of the Review Board to the Supreme Court,” the Review Board stated: “The conclusions as to Count I are affirmed. This Board considers the Count I violation of the Disciplinary Rules to be sufficiently serious to warrant censure if only this one count were involved here.” Thus, it was well over one month after it was known that the issue of advertising by lawyers would be decided by the United States Supreme Court that respondent was censured on the advertising count. Of course, this involved a first amendment right, and it is our duty under the fourteenth amendment to protect such rights as interpreted by the United States Supreme Court. (See Bigelow v. Virginia (1975), 421 U.S. 809, 811 , 44 L. Ed. 2d 600, 605 , 95 S. Ct. 2222, 2227 .) The Attorney Registration and Disciplinary Commission certainly must have been aware of the Code, canon, and opinions, as well as the trend of the law towards advertising reflected in Bates v. State Bar (1976), 429 U.S. 813 , 50 L. Ed. 2d 73 , 97 S. Ct. 53 .
We note that we do not suffer from monumental naivete. What has the Attorney Registration and Disciplinary Commission ever done about the self-laudatory articles about certain influential members of the bar? Some are obviously subject-generated. Most exceed what will be permissible under the broadest advertising standards following Bates. These “ads” are directed to the public, not clients, to attract business. In some instances the purpose is to give stature to someone without it. The average newspaper reader senses the nature of these write-ups. Yet no charge of impropriety has ever been leveled in that area.
Here respondent is a neighborhood practitioner. He is a noninfluential member of the bar. When he mails a bar association brochure only to clients from whom he admitted he obtained no legal business, he is hailed before the Disciplinary Commission on an apparently anonymous complaint. Unfortunately, this is but another of justice’s injustices — a characteristic of the administration of justice from time immemorial. It always seems there are two standards: one for the influential, another for the noninfluential; one for the powerful, another for the powerless; and one for the highly respected, another for the nondescript. The differentiation in standards runs the long litany descriptive of differences in society.
Count II, or more appropriately “round 2,” arose out of the filing of count I. Jancovic and Joost, Madsen’s associates, were, as we have noted, respondents to count I. Jancovic and Joost each had signed the brochure, “Tips From Your Lawyer for 1973.” They entered into a stipulation with the Attorney Registration and Disciplinary Commission, which in effect was an admission of guilt. After Jancovic and Joost had made their admissions, Madsen moved that his case be severed from theirs. Strangely enough, there was a finding of “no violation” and a recommendation of “no discipline” as to Jancovic and Joost. The Administrator took no exceptions to these findings, but nonetheless continued to prosecute respondent under count I.
On February 13, 1975, Jancovic and Joost, who had been subpoenaed by respondent, were advised by respondent in the presence of the assistant Administrator of the Commission, as well as its chief counsel, that he would testify as to the documents and answer whatever questions might be asked. He stated he would impeach Jancovic and Joost, showing that they had been guilty of unethical conduct, and violated their contractual obligation with him, and also the Criminal Code. The chief counsel for the Commission, presumably with a consciousness of respondent’s due process rights, immediately advised the hearing panel as follows:
“A few moments ago, the respondent in a conversation with Mr. Oswald and myself and two of my witnesses made serious threats against those witnesses if they were so much as to testify in this case. I propose to initiate a new complaint against the respondent. For that reason, I would like to have time to go back to the Inquiry Board for that purpose so that I can add another count to this complaint and then try the case all at one time.”
Count II was an overreaction by hypersensitive commission personnel. No witness was necessary to prove count I. Respondent had admitted the charges in his answer and in response to the Commission’s request for admissions of fact. The testimony of Jancovic and Joost in nowise changed the proof as to count I. How could respondent be intimidating witnesses when he had already admitted the substance of the charge of count I in the pleadings, and stated he himself intended to so testify?
But the ferocity with which the Commission pursued the respondent becomes manifest from a letter from its chief counsel dated February 26, 1975, and directed to a member of an inquiry panel. In this, it is stated:
“There has been a long delay in the filing of the hearing panel’s report, but I am now informed that no discipline will be recommended as to Joost and Jancovic and I am in accord with this and will file no exceptions.
Madsen is something else. I enclose a copy of some of the items in the record of his case together with memorandas by myself, Joost and Jancovic relating to Madsen’s conduct on the date his case was heard. John M. Oswald has read these memorandas and will confirm the facts related.
We expect to bring Mr. Madsen’s conduct to the attention of the State’s Attorney, but I also request that you vote an additional complaint against him which I will then add to the pending complaint. I suggest that you may conclude that he has violated DR 1 — 102(A)(3), (5) and (6) in addition to his violation of Ch. 38, Sec. 32 — 4(b).” (Emphasis added.)
Madsen’s conduct was brought to the attention of the State’s Attorney, who, in his wisdom, apparently wanted no part of it.
The Administrator had no authority to refer this matter to the State’s Attorney. Our Rule 752 (58 Ill. 2d R. 752) provides that he shall investigate the conduct of attorneys; assist each Inquiry Board in its investigations; employ certain personnel; discharge unsatisfactory personnel; and maintain such records as the Commission prescribes. The office of Administrator for the Attorney Registration and Disciplinary Commission does not cloak him or his chief counsel with any powers of a prosecutor. This is but one of many instances, a study of the record makes obvious, of some personal enmity towards this member of the bar by certain commission personnel. Need it be said that such an attitude aids neither the function of the Attorney Registration and Disciplinary Commission, nor the duties of this court?
The proceedings which followed were a shambles. On June 17, 1975, the amended complaint consisting of count I and count II was mailed. Under Rule 5.1 of the Commission, the respondent has 28 days within which to answer or otherwise plead. Rule 6.2 of the Commission also provides that all discovery shall be completed not later than 14 days prior to the daté set for hearing. The Commission, however, with a fine disregard for its own rules, persisted in commencing the hearing on June 30, 1975, 13 days after the date of mailing and before the respondent’s pleading was due, and at a time when discovery was impossible.
On June 25, 1975, in an effort to prepare for the hearing of June 30, an employee of the Commission, witness to what occurred on February 13, 1975, was subpoenaed. However, the subpoena was quashed because no witness fee was paid and it was not within a reasonable time prior to the taking of the depositions. Actually, all that was requisite was a notice, not a subpoena. Rule 6.1 of the Commission provides that discovery practice shall be in accordance with the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 1 et seq.) and the Supreme Court Rules. Supreme Court Rule 204(3) (58 Ill. 2d R. 204(3)) provides that service of notice of the taking of a deposition of a person who is an employee of a party is sufficient to require the appearance of the deponent. No subpoena was necessary under this rule of court requiring production of full-time employees of the Commission. The Commission’s duty to disclose is no narrower than that of the attorney. The discovery provisions of the Civil Practice Act and rules of this court bind both.
Notwithstanding respondent’s motion to continue the hearing to a date beyond 13 days after he had received the complaint, in accordance with the rules of the Commission, the matter went to trial. Respondent’s motion for a continuance was not ruled upon until the prosecution had finished its case.
On October 16, 1975, the Hearing Board determined that as to count I respondent be censured, and as to count II that he be suspended from the practice of law for a period of three years.
Respondent appealed to the Review Board, which recognized that the hearing of several months had been a futility because of the hearing panel’s violation of the Commission’s rules. The cause was remanded to the Hearing Board with directions that it be assigned to anew hearing panel for further proceedings applicable to all matters relevant to the second amended complaint filed June 17, 1975, which, of course, consisted of two counts. Such inherently erroneous proceedings against a professional man, whose vocation hangs in the balance during the pendency of the charges, cannot be justified.
On remand for a new hearing, respondent was unsuccessful in obtaining intelligible answers on the oral depositions of the Administrator and the chief counsel of the Commission. Finally, on April 30, 1976, he obtained an order from the hearing panel for the Administrator and his chief counsel to answer certain questions.
On July 14, 1976, after a second complete hearing, the panel stated with reference to count I that it would warrant discipline, and as to count II that the panel recommended censure.
Viewed as a whole, the proceedings before the Commission were unusual — a charitable term. The Administrator is without power to prosecute selectively. There is no authority to grant immunity to witnesses. While this term was not employed, J ancovic and Joost, by conceding their guilt under count I, got off with “no discipline.” Nor is it part of the Administrator’s function to urge prosecution by the State’s Attorney of a lawyer before him. His function is to aid this court in disciplining members of the bar. His only powers are disciplinary in nature. (See Supreme Court Rule 751, and Rule 1.1 of the Rules of the Attorney Registration and Disciplinary Commission.) Above all, the Commission should adhere to its own rules. Commencing a hearing 13 days after a new complaint was mailed was clearly unreasonable.
The Attorney Registration and Disciplinary Commission has broad powers. Its responsibilities are commensurate with those powers. We believe arrogance and irresponsibility were demonstrated here. Neither is part of the Administrator’s duty. Just as the individual citizen cannot withstand the power of an autocratic government, so no individual lawyer can withstand an autocratic Attorney Registration and Disciplinary Commission. Count I should never have seen existence. Without it there would not have been this comedy of errors.
We now consider the reference in the majority opinion to two lawsuits. What deeply disturbs us about these matters is that they were not part of the complaint before the Commission under our Rule 753(b). Respondent was given neither notice of such a charge, nor an opportunity to be heard. No consideration of nor reference to these lawsuits was proper if respondent was to be accorded due process — the fundamental concept of fairness.
The right of due process is so fundamental that its genesis is in the natural law. J. Roland Pennock’s introduction to the recent work, Due Process: Nomos XVIII, notes:
***** A variety of streams of thought, some new and some traditional, fed the stream of evolving due process interpretation. All sought ‘justice.’ But what is justice? A venerable historical tradition comes down to us under the name of natural law, with its more modem offshoot of natural rights. In England today, the term ‘natural justice’ is perhaps to similar effect, but is less freighted with history. Justice Frankfurter, frequently attacked by Justice Black for importing into due process interpretation the ‘accordionlike’ qualities of natural law, in fact attempted to combine history and discretion. [Rochin v. California (1952), 342 U.S. 165 (Frankfurter’s majority opinion and Black’s concurring opinion).] He sought the best of the ‘Anglo-Saxton tradition,’ but at the same time attempted to blend it with a sympathetic sensitivity to current trends of thought regarding justice. Or perhaps what his ethical antennae sensed was what Edmund Cahn called the ‘sense of injustice.’ ” J. Pennock & J. Chapman, Due Process: Nomos XVIII at xvii (N.Y.U. Press 1977.)
Admittedly due process is an ancient and well-established doctrine. In In re Ruffalo (1968), 390 U.S. 544 , 20 L. Ed. 2d 117 , 88 S. Ct. 1222 , an attorney was disbarred on a charge not originally made. During the course of the hearing, certain amendments were added alleging payment to Michael Orlando for and in preparation of suits against Orlando’s employer. In a reversing opinion the United States Supreme Court held the procedure employed violated the attorney’s fundamental right to due process:
“Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. [Citations.] He is accordingly entitled to procedural due process, which includes fair notice of the charge. [Citation.] It was said in Randall v. Brigham, 7 Wall. 523, 540 , 19 L. ed. 285, 293, that when proceedings for disbarment are ‘not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence.’ Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether ‘the state procedure from want of notice or opportunity to be heard was wanting in due process.’ [Citation.]
In the present case petitioner had no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified at length on all the material facts pertaining to this phase of the case. As Judge Edwards, dissenting below, said, ‘Such procedural violation of due process would never pass muster in any normal civil or criminal litigation.’ [Citation.]” ( 390 U.S. 544, 550-51 , 20 L. Ed. 2d 117, 122 , 88 S. Ct. 1222, 1226 .)
In Ruffalo’s case the charges were made during the hearing process. Here the matter considered was never a part of a charge, and there was no hearing on it. These were never considered by the Inquiry Board, the hearing panel or the Review Board.
The fundamental fairness which is due process has been described:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314 , 94 L. Ed. 865 , 873, 70 S. Ct. 652, 657 .
This court has long recognized that a party must not only receive notice of the charges against him, but be afforded the opportunity to be heard on such charges. Durkin v. Hey (1941), 376 Ill. 292, 300 ; Bruce v. Department of Registration & Education (1963), 26 Ill. 2d 612, 621 ; People v. Peters (1957), 10 Ill. 2d 577, 580 .
As “the deliberations of the trial judge are limited to the exhibits offered and admitted in evidence and the record made before him in open court” (People v. Rivers (1951), 410 Ill. 410, 416 ), so this court cannot consider matters not in evidence and not part of the record before it (People v. Scudder Buick, Inc. (1971), 47 Ill. 2d 388, 390-91 ; Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 415 ; Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427 ).
More than that, this record adequately demonstrates why suit was filed in the United States District Court. It charged the Commission with violation of its own rules, harassing the respondent by subjecting him to seven different boards at great personal expense, and questioned the constitutionality of the conduct of the Commission. The filing date was April 5, 1976, after the Commission had conducted one hearing which the Review Board had to reverse for violation of the Commission’s rules by the hearing panel. Prior to filing this action the Commission had accepted a finding of “no discipline” against Jancovic and Joost. So also, through its chief counsel, it had suggested to the Inquiry Board that Madsen’s matter be turned over to the State’s Attorney of Cook County. The Commission had refused to give Madsen the name of the complainant, although its rules provide that charges from persons other than members of an inquiry board shall identify the person making the charge (Rule 1.2 of the Rules of the Attorney Registration and Disciplinary Commission). Respondent had been denied discovery. We believe the conduct of the Commission amply justified resort to the courts.
We are equally concerned by this statement in the majority opinion:
“The record shows that respondent filed numerous motions, many of which were repetitive, and all of which were considered and ruled upon by the hearing panel prior to the commencement of the hearing.” ( 68 Ill. 2d at 479 .)
Each of these motions was within the confines of legitimate advocacy. Is a lawyer to be criticized for making them? It will be a sorry day in the administration of justice when the courageous advocate is penalized because he employs the tools the law allows. The fearless and courageous advocate is as important to the administration of justice as an independent judiciary. Without him all rights are mere abstractions. The outcome of the trial of Socrates, Joan of Arc, and Mary Queen of Scots could possibly have been different had a strong and fearless advocate appeared in their defense.
Particularly significant in this record is the absence of any evidence suggesting any amoral conduct on the part of respondent. There is no question of his integrity or fair dealing. It was stipulated that he was a “beneficent employer.” So far as we can ascertain, Mr. Madsen is an honorable man, who has done nothing to injure anyone. He was the object of energumens on the Commission. He has been literally pilloried because he asserted his rights and questioned the procedures of the Commission. This seems obvious from the conclusion of the majority opinion: “[T]he record, briefs and argument reflect an attitude of self-righteousness and rationalization of the actions taken.” 68 Ill. 2d at 482 .
This day in another case (In re Spencer, 68 Ill. 2d 496 ), the discipline was “censure” as compared to a 30-day suspension here.
In that other case Spencer represented the executor in proceedings in which a will was admitted to probate. Under the terms of this will Minnie Bielefeldt inherited the entire estate. A petition to contest the will was filed.
Without the knowledge of the executor, respondent, whose obligation it was to defend the will, accepted a retainer from Minnie Bielefeldt as well as a contingent fee agreement whereby he was to be paid one-third of any sum obtained by her from the estate, inclusive of the one-sixth of the estate to which she was entitled as an heir. Moreover, the contract provided Spencer was “appointed and designated by me in the case of my death to be the attorney for my estate.”
Spencer filed an appearance in the will contest proceeding and did not withdraw as the attorney for the executor until more than three months after the petition to contest the will was filed.
A petition requiring the removal of the executor purportedly signed by Minnie Bielefeldt and notarized was filed, but respondent had forged her name without her consent. The petition had to be withdrawn because she was unwilling to proceed with the removal.
Substantial sums were involved. Respondent obtained $8,750 from Mrs. Bielefeldt and $5,635 from the estate. He later filed a suit against her and recovered an additional $14,000.
If the penalty of censure was appropriate there, then, were it in our power, a laurel wreath would be equally appropriate here. Respondent’s right to a post of honor in the profession should not be questioned by these proceedings.
MR. JUSTICE CLARK joins in this dissent.