Opposition Brief — In re Powell

Supreme Court, U.S.”

a’ FILED

7) i) JUN 1 1989

No. 88-1800 JOSEPH F. SPANIOL, JR.

Se NAN tenet trail CLERK

L aE

In THE

Supreme Court of the Gnited States

OcrosEer Term, 1988

NATHAN N. POWELL,

Petitioner,

vs.

ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION OF THE SUPREME COURT OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

JAMES J. GROGAN

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Respondent

Of Counsel:

GrorcinaA M. ManHonry

Photex — 444 North Wabash Avenue — Chicago 60611 — 321-0223

QUESTION PRESENTED

Whether Petitioner's disbarment for

having a client post a $10,000

certificate of deposit as collateral for

a loan to a judge violated the due

process or equal protection clauses of

the fourteenth amendmant to the United

States Constitution.

il

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... iii, iv

CONSTITUTIONAL PROVISIONS AND

RULES INVOLVED ...--+ «© « «© « » 2-5

INTRODUCTION ...- + «© © «© © « « 5

SUMMARY OF ARGUMENT ... + « -« 5-6

PA Oo 4» a a ae a ae oe i ee sed 7°22

CONCIUISION . . « © © «*# #® @ @ & 23

ill

TABLE OF AUTHORITIES

CASES: Page

Goldfarb v. Virginia State Bar,

eweamees 27a CAFO) eo «© © © © © 8 7

In re Corboy, 124 I1ll.2d 29,

528 N.E.2d 694 (19838) ... . passim

In re Daley, 549 F.2d 469 |

ES ES ree 1

In re D'Angelo, 126 Ill.2d 45,

See mamema ©OL (1966) ...-+-- 18

In re Green, No. 65942, slip op.

meme OO, 3966) ....-.-. 18

In re Heller, 126 Ill.2d 94,

Bae memeee O24 (1968) . . «~ © »~ e QL

in re gones, 125 Ill.2d 371,

Bae meeb.20 239 (1988) ...-- + - 16

In re Karzov, 126 I1l.2d 33,

533 N.E.2d 856 (1988) ...... 17

In re Ketchum, 124 Ill.2d 50,

528 N.E.2d 689 (1988) .....e 17

In re Lane, 127 I1ll.2d 90,

535 N.E.2d 866 (1989) ......- 18

In re Leonard, 64 Ill.2d 398,

356 N.E.2d 62 (1976) oe ie —~ ww > me

In re Lidov, No. 67978, slip op.

(Jil. May 17, 1989) Sako. soe « se

7 re Mert, 83 11l1.2d 20,

Beeomemsaea A262 (1980)... . 72 29

1V

In re O'Hallaren, 64 Ill.2da 426,

356 N.E.2d 520 (1976) ...

In re Powell, 126 I1l.2d 15,

533 N.E.2d 831 (1988) ...

e e 21

- passim

In re Rothenberg, 127 I1l.2d 139,

535 N.E.2d 849 (1988) .. .

In re Ruffalo,

390 U.S. 544 (1968) ... -

In re Saladino, 71 I11.2d 263,

375 N.E.2da 102 (1978) .

In re Samuels, 126 Ill.2d 509,

535 N.E.2d 808 (1989) .. .

» « bF*26

- passim

° . . 14

Middlesex County Ethics Committee,

et al., v. Garden State Bar

Association, 457 U.S. 423 (1982) .. 20

People v. Tosch, 114 I1ll.2d 474,

501 N.E.2a@ 1253 (1986) ...

Pulley v. Harris,

465 U.S. 37 (1984) . «. «© « « «

CONSTITUTION:

U.S. CONST. amend XIV... .

STATUTES:

107 I11.2d Rule 1-102 ... .

107 I11.2d Rule 7-110 ... .

107 I1l.2d Rule 65(c)(4) .. .

107 Ill.2d Rule 771 ... .

. o e a2

- passim

e . . 8

. passim

No. 88-1800

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NATHAN N. POWELL,

Petitioner,

Vs.

ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION

OF THE SUPREME COURT OF ILLINOIS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

RESPONDENT'S BRIEF IN OPPOSITION

fe TR

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution

Amendment XIV, Section 1:

Nor shall any State deprive

any person of life,

liberty, or property,

without due process of law;

nor deny to any person

within its jurisdiction the

equal protection of the

laws.

RULES OF THE SUPREME COURT OF

ILLINOIS AND ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION INVOLVED

Illinois Code of Professional

Responsibility, Rule 7-110(a).

Relationship With Officials (1980).

A lawyer shall not give or lend any

thing of value to a judge, official, or

employee of a tribunal, except that a

lawyer may make a contribution to the

campaign fund of a candidate for such

office.

x <S

Illinois Code of Professional

Responsibility, Rule 7-110(a).

Relationship With Officials (Amended

1988).

A lawyer shall not give or lend any

thing of value to a judge, official, or

employee of a tribunal except those gifts

or loans which a judge or a member of his

family may receive under Rule 65(c) (4) of

the Code of Judicial Conduct, except that

a lawyer may make a contribution to the

campaign fund of a candidate for such

office.

Illinois Code of Judicial Conduct, Rule

65(c) (4). A Judge Should Regulate His

Extrajudicial Activities To Minimize The

Risk Of Conflict With His Judicial

Duties.

(4) Neither a judge nor a member of

his family residing in his’ household

should accept a gift, bequest, favor, or

loan from anyone except as follows:

(a) a judge may accept a gift

incident to a public testimonial to him;

books supplied by publishers on a

complimentary basis for official use; or

an invitation to the judge and his spouse

to attend a bar-related function or

activity devoted to the improvement of

the law, the legal system, or the

administration of justice;

(b) a judge or member of his

family residing in his household may

accept ordinary social hospitality; a

gift, bequest, favor or loan from a

relative; a wedding or engagement gift; a

loan from a lending institution in its

soil

regular course of business on the same

terms generally available to persons who

are not judges; or a scholarship or

fellowship awarded on the same terms

applied to other applicants;

(c) a judge or a member of his

family residing in his household may

accept any other gift, bequest, favor, or

loan only if the donor is not a party or

other person whose interests have come or

are likely to come before him, including

lawyers who practice or have practiced

before the judge.

Supreme Court Rule 771. Types of

Discipline

Conduct of attorneys “which

violates the Code of Professional

Responsibility 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 ccurt. Discipline of attorneys

may be:

(a) disbarment;

(b) disbarment on consent;

(c) suspension for a

specified period and

until further order of

court;

(d) suspension for a

specified period of time;

(e) suspension until further

order of the court;

(f£) suspension for a

specified period of time

or until further order of

pind

the court with probation;

or

(g) censure.

INTRODUCTION

For the sake of brevity,

Respondent Will not include

provisions in this brief for the

opinion below, jurisdiction, and

statement of the case. Respondent

will address in the argument

section those portions of

Petitioner's brief which Respondent

considers inaccurate or inadequate.

SUMMARY OF ARGUMENT

The Petition for Writ of

Certiorari to the Supreme Court of

Illinois should be denied for the

following reasons:

First, in disciplining

Petitioner, the Supreme Court of

Illinois did not violate the equal

protection clause. Even if the

Court had adopted Petitioner's

proposed interpretation of Rule

7-110(a) of the Illinois Code of

Professional Responsibility, such

an interpretation would not have

affected the result the state court

reached in Petitioner's

disciplinary proceeding.

Second, Petitioner was not denied

due process of law during the

a

course of the disciplinary

proceeding against him. Petitioner

received notice of the charge and

an opportunity to defend in

complete conformance with due

process requirements mandated by In

re Ruffalo, 390 U.S. 544 (1968).

Third, the amount of discipline

imposed upon Petitioner is within

the discretion of the Supreme Court

of Illinois. Such flexibility is

crucial to achieve the ultimate

goals of the disciplinary systen.

The only issue in fact raised by

this petition is an issue of state

law, which the Supreme Court of

Illinois has already decided.

—(—

ARGUMENT

The Petition for Writ of

Certiorari to the Supreme Court of

Illinois should be denied because

Petitioner was accorded due process

and equal protection of the laws

during his disbarment proceeding.

Lawyer discipline is within the

inherent authority of the state

courts. See, Goldfarb v. Virginia

State Bar, 421 U.S. 773, 792-793

(1975). Supervision of attorney

conduct is one of the most crucial

functions of the Supreme Court of

TiiLinoeie. See, In re Neff, 83

Tll.2d 20, 413 N.E.2d 1282, 1284

(1980).

Petitioner was disbarred for

having a client post a $10,000

certificate of deposit as

a

collateral for a loan to a judge

before whom Petitioner and the

client had a pending case. The

Supreme Court of [Illinois found

that Petitioner circumvented a

disciplinary rule through the

actions of another in violation of

Rule 1-102(a)(2); gave or lent a

thing of value to a judge in

violation of Rule 7-110(a); and

engaged in conduct prejudicial to

the administration of justice in

violation of Rule 1-102(a) (5).

In selecting the amount of

discipline to be imposed upon an

attorney the Supreme Court of

Illinois balances the need to be

consistent with a consideration of

the unique facts of the particular

case. See, In re Saladino, 71

Il1l.2d 263, 375 N.E.2d 102 (1978).

= se

Based on the unique facts of this

case, including the specific

finding that Petitioner intended to

curry favor with the judge, the

deliberate nature of Petitioner's

course of conduct, and Petitioner's

involvement of his own client in an

unethical scheme, the Supreme Court

of Illinois concluded that

disbarment was the appropriate

sanction.

Petitioner argues that his

disbarment violates the equal

protection clause because Rule

7-110(a) prohibits gifts or loans

to judges yet allows contributions

to campaign funds. Petitioner

argues that this classification is

irrational and can only be cured by

interpreting the rule in such a way

as to take into account the mental

—10—

state or purpose accompanying a

gift or a loan to a judge.

The Supreme Court of Illinois

correctly concluded that such an

interpretation would not affect the

result in Petitioner's case. The

court adopted the Hearing Board's

finding that Petitioner was

attempting to curry favor with the

judge. Petitioner testified that

he arranged the loan, in part,

because he feared that the failure

to do so would adversely affect the

case then pending before the judge.

The Supreme Court of Illinois

held that Petitioner did not belong

to the group which he contended

Rule 7-110(a) discriminates

against, namely those attorneys who

make personal gifts to judges with

no improper motive. The court

a |

noted that in order to raise an

equal protection argument, the

party must be a member of the class

against whom the rule allegedly

discriminates. People v. Tosch,

114 Ili.2a 474, 682, 501 W.2.2d

1253, 1256 (1986), cert. denied,

483 U.S. 1008 (1987).

Because Petitioner's actions were

calculated to have an effect on the

case pending before the judge, the

Supreme Court of Illinois correctly

concluded that Petitioner lacked

standing to raise his equal

protection claim.

Petitioner also argues that his

disbarment violates equal

protection and due process because

Petitioner sxeanend the loan for

the judge before the Supreme Court

of Illinois formally adopted Rule

pa

7-110(a); because the meaning of

Rule 7-110(a) was vague and

debatable before the court decided

In re Corboy, et al., 124 I1l.2d

29, 528 N.E.2d 694 (1988); and

because Petitioner did not receive

the same disciplinary sanction

imposed upon other Illinois

attorneys who violated Rule

7-110(a).

1

It is to be noted that although

Petitioner raised an equal

protection claim before the Supreme

Court of Illinois, he did not raise

a due process claim.

=

Petitioner asserts that his

disbarment violates due process

because the meaning of Rule

7-110(a) was vague and debatable at

the time Petitioner engaged in the

misconduct. Petitioner's argument

is meritless. In this case,

Petitioner's actions were wrong

under the prior disciplinary rule

and wrong under the rule as later

amended by the state court in In re

Coroow, i24 Iil.2d 29, 528 N.E.2da

694 (1988). The Supreme Court of

Illinois correctly concluded that

Petitioner violated Rule 7-110(a)

under any analysis of the rule. In

re Powell, 126 Ill.2d 15, 26, 31,

533 N.E.2d 831, 835, 837 (1988).

Rule 7-110(a) provided Petitioner

with more than fair warning that he

could not engage in such activity.

a,

Although Petitioner arranged the

loan for the judge before the

Supreme Court of Illinois formally

adopted Rule 7-110(a), Petitioner

concedes that prior to the adoption

of the Code of Professional

Responsibility, the court had in

numerous opinions referred to the

Illinois State Bar Association

Ethics Code as a safe guide in

reviewing lawyer conduct.

(Petition at 5, n.4). See, In re

Samuels, 126 I1ll.2d 509, 524, 535

N.E.2d 808, 814 (1989).

Petitioner, a lawyer of long

standing, knew or should have known

that loans to judges were

unethical. The Supreme Court of

Illinois noted that when the judge

asked for his help Petitioner felt

victimized because he could not

a:

reconcile what he was doing with

the fact that he had a case pending

before the judge. At the judge's

criminal trial for extortion

Petitioner testified that he

decided not to tell his co-counsel,

Paul Flaherty, about the loan

because he knew Flaherty to be a

man of good character and he feared

Flaherty would withdraw from the

case if Flaherty learned of the

loan to the judge. Powell, 126

111.2€@ at 23, 533 B.E.2a at 833.

Petitioner was accorded due

process in the formal disciplinary

proceeding. In In re Ruffalo, 390

U.S. 544 (1968), this Court stated

due process requires that an

attorney in a disciplinary

proceeding receive notice of the

charge and an opportunity to be

«he:

heard. Las at 550. Both

requirements were met in the

instant case. Petitioner had

notice that he was charged with

arranging a proscribed loan to a

judge. He was afforded ample

opportunity to defend the charges

and he did so in a vigorous manner.

Petitioner was represented by

counsel at hearing and on appeal.

Petitioner's basic underlying

grievance is that he did not

receive the same disciplinary

sanction as certain other Illinois

attorneys who violated the same

disciplinary rule. in If +e

Corboy, 124 iils2a 29, See meee ea

694 (1988) and In re Jones, 125

Ill.2da 371, 532 Wiesew oan taeees,

a total of seven lawyers were found

to have violated amended Rule

ae, | am

7-110(a). The Court declined,

however, to impose sanctions upon

them due to the unique facts

surrounding their financial

transactions as well as other

mitigating factors. In other cases

considering Rule 7-110(a) the court

suspended or disbarred Illinois

attorneys for violations of Rule

7-110(a). See,, e.-Gg., In re

Karzov, 126 I11.2d 33, 533 N.E.2a

856 (1988) (eighteen month

suspension), petition for cert.

filed (No. 88-1740); In _re

Ketchum, 124 I1ll.2d 50, 528 N.E.2d

689 (1988), cert. denied, U.S.

, 109 S.Ct. 1140 (1988) (two year)

suspension); In re Heller, 126

Ill.2d 94, 333 N.E.2a 824

(1988) (disbarment) ; In re

Rothenberg, 127 I11.2d 139, 535

= =

N.E.2d 849 (1989) (one year

suspension); In re D'Angelo, 126

Ill.2a 45, 333 N.E.2ad 861

(1988) (disbarment); In re Green,

No. 65942, slip op. (Ill. Oct. 20,

1988) (disbarment) (opinion vacated

after Green's death but prior to

the issuance of the mandate); In re

Lane, 127 I1l1l.2d 90, 535 N.E.2d 866

(1989) (one year suspension); In re

Lidov, No. 67978, slip op. (Ill.

May ee 1989) (six month

suspension).

The Illinois court was not

required to make Petitioner's

sanction identical with others who

were found to have violated the

same disciplinary rule. Final

responsibility for determining

discipline to be imposed on

attorneys rests in the Supreme

=

Court of Illinois. In determining

the appropriate penalty, the Court

may properly consider all facts and

circumstances in aggravation and

mitigation, including the

attorney's actual conduct. See, In

re Neff, 83 Ill.2d 20, 413 N.E.2d

1282 (1980). Furthermore, this

Court has rejected the notion that

there is a constitutional right of

proportionality of sanctions, even

in criminal proceedings. See,

e.g., Pulley v. Harris, 465 U.S.

37 (1984). Even if it could be

argued that a criminal defendant

were entitled to this type of

proportionality, the concept should

not apply to an attorney

disciplinary proceeding. A

disciplinary proceeding is simply

not criminal in nature. In re

. —20—

Daley, 549 F.2d 469 (7th Cir.

1977), cert. denied, 434 U.S. 829

(1977). C.f., In re Ruffalo, 390

U.S. 544 (1968) (disciplinary

proceedings, although sui generis,

described as quasi-criminal).

Flexibility in imposing sanctions

is neither arbitrary nor unconsti-

tutional but necessary to achieve

the goal of safeguarding the

public, maintaining the integrity

of the profession and protecting

the administration of justice.

See, Middlesex County Ethics

Committee, et. al. v. Garden State

Bar Association, et. al., 457 U.S.

423, 434-35 (1982). To achieve

fair results, the disciplinary

system must be neither rigid nor

mechanistic, but flexible enough to

tin

allow for the uniqueness of each

case. See, In re Leonard, 64

I1l1.2d 398, 406, 356 N.E.2d 62, 66

(1976). The court must evaluate

each situation independently

because the circumstances of each

case vary substantially. Sanctions

which are appropriate in one

situation may be inappropriate in

another even though the underlying

offense is similar or even the

same. See, In re O'Hallaren, 64

Il11.2d 426, 433, 356 N.E.2d 520,

523 (1976). The Illinois court

correctly applied these principles

in deciding the proper sanction for

Petitioner.

Finally, Illinois Supreme Court

Rule 771 provided Petitoner with

sufficient notice that the state

court had the authority to impose

—22— .

discipline ranging from censure to

disbarment upon any finding of

misconduct. 107 I11.2d Rule 771.

Thus the issue of appropriate

sanction as raised by Petitioner is

a matter of state law. No

substantial federal questions

exist.

In summary, the due process and

equal protection clauses of the

United States Constitution do not

require a more exacting standard

than that employed by the Supreme

Court of Illinois. Further,

disparate sentencing is not a

proper basis for certiorari

jurisdiction.

a

CONCLUSION

For the reasons set forth above,

Respondent respectfully requests

that the Court deny the Petition

for Writ of Certiorari.

Respectfully submitted,

Cha nies Q ‘ 55 ogari / 4. th.ja,

- yv J ‘f

James J. Grogan

203 North Wabash Ave

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Respondent

Georgina M. Mahoney

assisted in the preparation of this brief.