Petition — Ascher v. Illinois

lé &, Supreme Court, U.S,

g0-1015 | FILED

DEC 19 1980

No. MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the United States

Ocroser TERM, 1980

|

WALTER ASCHER,

Petitioner,

VS.

STATE OF ILLINOIS,

Respondent.

eee

re

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

FRANCIS X. RILEY

18101 Route 53

Glen Ellyn, Illinois 60137

(312) 858-7200

Attorney for Petitioner

telat

Photex — 35 East Wacker Drive — Chicago 60601 — 332-0111

QUESTIONS PRESENTED FOR REVIEW

1. Whether mere allegations of wrong

doing in a complaint, unsubstantiated and re-

futed of record, can support a denial of a

license to practice law?

2. Can the subjective conclusions

"inexcusable" conduct, and "unconscionable" pro-

cedures, be applied subjectively to deprive a

qualified applicant to a license to practice law,

without evidence of immoral or illegal conduct

to support them?

3. When all of the evidence produced

in support of an application for a license to

practice law, comes from the applicant, which

shows no immoral or illegal act done; and, no

contradictory evidence is produced to show such

illegality or immorality; can the State deprive

a qualified applicant of a license to practice

law without violating the due process clause of

the Constitution, depriving him of his property

arbitrarily and capriciously?

ili

TABLE OF CONTENTS

PAGE

OPINION BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED i

STATEMENT OF THE CASE 2

REASONS FOR GRANTING WRIT 16

(ARGUMENT )

I

It is a denial of property without

due process of law, to deny a qualified person

a license to practice law, who has not violated

any moral precept, a canon of ethics, a code

of professional responsibility, a statute, an

ordinance or a rule with the force of law.

II

It is a denial of property without due

process of law to deny a qualified person, a

license to practice law, when the record is

devoid of evidence to prove that that person

committed any wrongdoing whatever.

PREVIOUS PAGE WAS BLANK

iv

ITI

It is a denial of property without due

process of law to deprive a qualified person of

a license by subjective standards of "inexcusable"

conduct, and, of the following "unconscionabie"

procedures, without evidence of any kind to

relate to that generic conduct or those un-

specified procedures.

PAGE

CONCLUSION 24

APPENDICES la

CASES AND AUTHORITIES:

Illinois Supreme Court Rules

Fata Fe THE SED SUT OO) cc ce vers ccce

Ill. Rev. Stat. Ch. 119A, |

oe FA Ae ee ee

ee et) es | ee

at | A PRS eS epi ee eee

I11. Rev. 1977 Ch. 110 Par. 40(2)......

Aberdeen & Rockfish R.R. v.

UNICOG SERCOS, GOO F £0 SE) seccccscces

Coates v. City of Cincinnati,

2 2 oper yee re

EG Oe CTE, SOP US ZO? ccc eniccceses

Ih FO RUTTOIO, 390 US 544... ccccccccces

In re Martin-Trigona,

ee ae eee etic eases beeenaees

Konigsberg v. State Bar,

3) Sr err Tee

Limpinen v. Hicks,

Rus Fe ere rrrerir tre

Schware v. Board of Examiners,

CRETE Cichch uN VeeCA cde sahae ses veces

Thompson v. City of Louisville,

PO, OF AOE. 06 eek Ae he cc eked ae cndeeceas

Vachon v. New Hampshire,

ke See

pay auer v. Council of Immigration

ik 8 Ieee ta errr

Willner v. Committee on Character,

SFE Ge FUG 0860s reas ceseseseVacescs ace

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

NO.

WALTER A. ASCHER,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The Petitioner, WALTER A. ASCHER,

respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the

Illinois Supreme Court.

‘isles

OPINION BELOW

The opinion of the Supreme Court appears

in the Appendix, infra, (pp. 1). It is published

in 81 111 2d 473; 411 NE 2d 1.

JURISDICTION

The order of the Supreme Court of

Illinois was entered on May 22, 1980. Rehearing

was denied on September 26, 1980. (id.) Juris-

diction of this Court is invoked pursuant to

28USCA 1257 (3).

STATEMENT OF THE CASE

A. BACKROUND

WALTER A. ASCHER is a real estate

broker licensed to practice in I1]linois.

(No. 75-67953) (R.46) He does so through the

medium of a wholly owned corporation called

VILLAGE CENTER REALTY, INCORPORATED. (R. 46 At

premises owned and operated by the Corporation,

he conducts a real estate business and an income

tax service. (R. 46) He is an enrolled agent

with the Internal Revenue Service. (R. 47)

vain

In April, 1979, he was notified that

he had satisfactorily passed the bar examination

given by the Board of Law Examiners, (111. Sup.

Ct. Rule 708, 58 I11 2d) and, was eligible to

be certified to the Court for admission to the

Bar. (Ex. 5; Rule 704, 58 I11 2d) When he

appeared for his admitting oath of office, he was

told that his certificate of character and fit-

ness had been withdrawn by the Committee which

issued it. (R. 9)

The Committee withdrew certification,

it subsequently said, because of the allegations

of a complaint filed in a civil action. (R. 12)

The plaintiff's attorney said he had sent a copy

of the complaint to the Committee. (R.9) Without

more, the certificate was withdrawn. Preliminari-

ly, this Petitioner then delivered every document

and paper in his possession to a member of that

Committee. He explained in detail the transaction

from start to finish. He proved no wrong and no

loss had occurred. Nevertheless, a hearing

—

before the full Committee was held. It was an

"inquiry", (R. 358) not a hearing, and, there-

fore, a cross examination was denied Petitioner.

(R. 358)

B. THE ACTUAL TRANSACTION

On April 18, 1978, Thomas Brewer, Sr.,

as president of Alloy Piping, Incorporated

signed a contract to purchase 5.5 acres of land

in Wood Dale, Illinois. ASCHER signed the contract

as Seller, describing himself as “beneficiary of

Bank of Lyons Trust Number 1737". ( Ex. A. To

Compl.) On July 6, 1979 the transaction was

closed, and title was transferred to Alloy's

Trust, the Bank of Elk Grove Village. (Ex. H to

Comp1.) A corrective deed, described as such on

its face, was subsequently prepared and filed of

record on September 7, 1979. (Ex. J., to Comp1.)

Notwithstanding the latter deed, Brewer entered

into possession of the 5.5. acres on July 6, 1979,

and has used, enjoyed and improved them without

—5—

hindrance from that date to this. (R. 213)

On July 6, 1978 there was, and had been

since May 26, 1978, a mortgage on the property in

the amount of $75,000.00. It was recorded on the

latter date as document No. R 78-46214, Du Page

County, Illinois. (Ex. D, to Compl.) BREWER was

told of the existence of this mortgage and of the

plans to remove to another piece of property.

(R. 126)

Although BREWER denied that knowledge

(R. 341 ) these facts are undisputed: a) The re-

corded mortgage was notice to the world; b)BREWER

in a September, 1979 letter to ASCHER referred

to the "clear title" promised on July 6; (Ex. 27,

R. 359) and, c) BREWER continued his use, en-

joyment, and development of the property during

the six month period that this mortgage remained

of record. (R. 213) On January 9, 1979 the mort-

gage was removed, at no cost or inconvenience

to BREWER.

—6—

C. THE UNFOUNDED COMPLAINT

During the waiting period (July-January)

for the removal of the mortgage, BREWER filed an

_ eleven (11) page complaint, with eleven (11)

exhibits, in the Chancery Division of the Circuit

Court of Du Page County. (Ex. A, R. 9) It prayed

for the deposit of the $75,000.00 mortgage money

in a fund pending litigation; (Par. A. P. 10);

and for a temporary injunction restraining the

transfer of the purchase price. (Par. 5, p. 11)

No motion was ever filed to effect either of

those emergency matters. (Mem. to Petition p.11)

Subsequently, the matter was transferred,

on petitioner's motion, to the law side of the

Court, as a damage action, where it presently

languishes. An offer to settle for $6,000.00 was

made by BREWER, accepted by the Petitioner,

(ex. Pet. for Rehearing p. 6) BREWER then

reneged on his offer.

BREWER'S attorney sent a copy of this

Complaint to the Supreme Court's Committee on

at ee

Character and Fitness. (Petition Pg. 4) It was

on the basis of the allegations of this complaint,

that Petitioner was denied a certificate of

Character and fitness. (Findinas of Fact. 9 to

21) They were also the basis for the Court's

refusal to license the petitioner. (81 111 2d at

487-489)

Disregarding its prolixity and its

digressions, the complaint makes four substantial

charges against this petitioner. These are:

1. ASCHER was the agent and the

fiduciary of BREWER. (Pars. 4-12)

2. ASCHER signed a contract to sell

property to which he had no title. (Par. 12)

3. ASCHER "forged" Kaczmarek's name

to documents. (Par. 27 A. C.)

4. In otent specific instances, ASCHER

acted in a "wilful, wanton, malicious and

fraudulent" manner. (Pars. 16, 19, 22, 26 (two

charges), 30, 32, and 34) None of these has

—8—

substance. None has been proved. All have been

refuted or satisfactorily explained of record.

No wrong has been done, ethically or legally.

1. ASCHER was not BREWER'S agent in the

sale, because a) he signed the contract as

Seller in his own name; (Ex. A. to Comp1.)

The complaint admits that he did so; ( Par. 12)

and, further alleges that ASCHER was Kaczmarek's

agent in this sale; (Count III, Par. 3) BREWER

admitted he paid no fees, commissions or other

inducement to ASCHER in this sale. (R. 346)

The charge of "fiduciary" in the com-

plaint springs from the allegation that ASCHER

was BREWER'S accountant. (Par. 8) ASCHER denied

that charge, and then, affirmatively averred

that he had prepared Alloy's 1975, 1976 and

1977 tax returns from figures supplied by

BREWER. (Am. Ans. par. 8) This is not denied by

reply. It is therefore, admitted. (111 Rev. Stat.

1977 ch 110, Par. 40(2) It was stated for the

record at the hearing by ASCHER (R. 111), and,

on

not refuted by BREWER. who also testified. It

has no current substance.

2. ASCHER signed to sell property he

didn't own. He did, but not only was he an equi-

table owner, (R 117-118) but in Illinois that

is not required. The seller need only be able

and willing to transfer the property on the

closing date in Illinois. (Limpinen v. Hicks,

73 111 App 3d 376, 378-79) ASCHER delivered on

the closing date.

3. Petitioner was guilty of "forgery".

The charge was made in ignorance of the legal

significance of the term. Forgery is a crime

of deception. Its essence is fraud. It is

postulated on the lack of authority to sign

another's name. (111 Rev. Stat. 1977, Ch. 38,

Par. 17-3(a) (1) ). ASCHER said he had authority

to sign Kaczmarek's name. (R. 158) He produced

a signed Power of Attorney. (Ex. 11) Kaczmarek

testified and said that ASCHER before, then and

in the future has authority to sign Kaczmarek's

—10—

name. (R. 262, 264)

4. The words, wilful, wanton, malicious,

and fraudulent are patently fatuous. None is re-

lated to substance. None is provable. These are:

i. The concealment of an existent con-

tract to sell this same property. (Par. 6) That

contract died in a failure of conditions

precedent, and, on April 18, 1978, the earnest

money had been returned and accepted. (Gr. Ex. 4)

ii. Petitioner deposited the proceeds

of the sale "in his own account in his own name",

(Par. 32) ASCHER has answered, (Par. 32) and has

protested wherever he can be heard (Mem. p. 11)

that no one can wilfully, wantonly, maliciously

and fraudulently, or singly or in any combination

deposit money in his own account in his own name.

He can obtain money by those means, but cannot

deposit it by those means.

iii. Petitioner had concealed the

details of the prior sale of the property from

=|

BREWER, a subsequent purchaser. Kaczmarek, peti-

tioner's associate, (R. 92) contracted to buy

this property on December 16, 1977. (Exs. 2 to 7)

The purchase price in that sale, and the details

of same, were none of BREWER'S busit.>ss. (R. 164)

This was an arms length sale. BREWER got what he

purchased free and clear. He enjoys it free and

clear. It is worth more than double its purchase

price. (R. 165, )

iv. Petitioner withheld the existence

of the $75,000.00 mortgage from BREWER. (Pars.

22, 26) In paragraph 25, of his complaint, BREWER

said this mortgage was recorded in the County

Recorders Office, as document R78-46214. That

is notice to the world, of whom BREWER is a part.

He then pleads the alteration of the first page

of a title commitment to eliminate reference to

that mortgage. (Par. 24) But, that page is part

of a four (4) page document, and the mortgage

is detailed in those pages. (R.131) BREWER, by letter

in September, 1979 refers to the "clear title"

a!

promised on July 6. This mortgage was the only

"impediment to "clear title", so BREWER tacitly

says he was aware of that mortgage on July 6.

Finally, the mortgage never was, and is not now,

an impediment to BREWER'S title or to his enjoy-

ment of the property. The allegation does and

cannot reflect adversely upon the petitioner's

character, because it lacks evidentiary sub-

stance.

v. The petitioner "in preparing the

warranty deed" omitted stating it was subject

to a mortgage. This fuzzy language may refer to

a need to refer to a mortgage in a deed. There

is no such need. There is no provision for a

reference to amortgage on a deed. (I11. Ex. C to

Comp].) In any event, it was not concealed (see,

iv. above)

vi. This charge relates exclusively to

the prior sale of the property from Freston to

Kaczmarek. As noted above, No. iii, p. 17 ) this

we

sale was none of BREWER'S business. That contract

was entered into four months previously. It was con-

summated according to its terms. BREWER'S contract

was consummated according to its terms. Nothing

of the first sale was relevant to BREWER or his

concern. Thus, the wilful, wanton, malicious and

fraudulent words here fail for want of a reference

to BREWER.

D. THE PEREPHERAL CHARGES

1. This petitioner had misstated a fact,

in one of the forms filed with the Committee. He

answered a supplementary questionaire, updating

certain answers on his basic questionaire re-

quiring the details of the civil litigation in

which he was involved. (See, Exs. 65 and 66) In

April, 1979 in an update he answered relative to

civil litigation, "no change". This lawsuit had

been filed in November, 1978. Thus, the answer

was wrong.

The Committee and the Court, by label-

ing, by intensifying and by horror has trans-

a Yoon

substanstiated this civil complaint, into a com-

plaint, into a compendium of evil. By doing so,

it has made the concealment of it equivalent of

a felony. (81 111 2d at 499) The citation in

support of its condemnation were concealment of

felonies.

Calmer minds could have accepted the

good faith explanation of the petitioner. (R.172 )

Or, at least kept the failure to disclose the

pending civil litigation, to the level of civil

litigation. ASCHER had previously listed some

eight (8) civil law suits. This one was not

essentially different, and ASCHER had testified

that after being deposed in that lawsuit, he

thought it had been satisfactorily resolved.

(R. 171) In any event, he told the Committee that

both he and his wife, the preparer, thought it

had been reported earlier on another form.

(R. 169 )

2. The Committee (Findings of Fact)

and the Court (81 111 2d at 499, 501) had a

eT er ee eae

—15—

preoccupation with the petitioner practicing law

without a license. The fact is there is not one

iota, not one scintilla, no evidence of any kind,

that this petitioner gave legal advice, represen-

ted a client, or held himself out to anyone at

anytime, that he was a lawyer. He had created a

vehicle for that purpose and equipped it, in

anticipation of his right to practice law. (R.179 )

But, since he was within minutes of being admit-

ted to practice, preparation for it was proper

and correct, but that is not the same as doing

it. Yet, the brush was used to tar him, wrong-

fully and without factual support.

ee eee

ny ae

ARGUMENT

THIS PETITIONER WAS DENIED DUE PROCESS

OF LAW IN THE STATE COURT'S DENIAL OF A LICENSE

TO PRACTICE LAW BY; A) FAILING TO SUPPORT THAT

DENIAL WITH EVIDENCE OF HIS LACK OF GOOD MORAL

CHARACTER; B) BY FAILING TO FIND A VIOLATION

OF MORALS OR OF LAW, AND SUBSTITUTING FOR THAT

FAILURE, THE SUBJECTIVE CONCEPTS OF "“INEXCUSABLE

CONDUCT"; AND, C) IN DENYING HIM THE RIGHT TO

CROSS EXAMINATION OF AN ADVERSE WITNESS.

|

The Illinois Supreme Court has a process

of a combination of Court rules 708 and 709,

(73 111 2d) which produces procedures of contest-

ing its Committee's denial of a Certificate of

Character and Fitness. This is called an "inquiry".

(R. 358 ) The denial of due process inherent in

that designation is that the petitioner is denied

the right of cross examination; (R. 358 ) and

therefore, a denial of due process. Willner v.

Committee on Character, 373 US 96, 103.

However, a hearing in the sense of the

production of evidence was available and used.

The hearing before the Committee began promptly

at 9:00 a.m. At the outset, the Applicant

acknowledged his burden to show he has the

proper character and fitness to practice law.

(A 16) This, of course, was his duty, (In re

Martin-Trigona, 55 I11 2d 301, 305) In meeting

that obligation, the Applicant testified for

more than four (4) hours. (R. 42-252) All of the

exhibits are documents he had filed with the

—is—

Board of Bar Examiners, or had furnished to the

Committee, or introduced into the hearing. The

sole exception was the Complaint in ALLOY PIPING

v. ASCHER et al, (A. 9) which had been forwarded

to the Committee by the attorney (Stephen J.

Culliton) for the Plaintiff. (R. 6) It was the

springboard for the hearing and the recommenda-

tion.

The transcript of the hearing consisted

of 402 pages. The Applicant and his witnesses

testified for 325 of them. (R. 3) Four of the

six witnesses were the Applicant and his corro-

borating witnesses. The Plaintiff (BREWER SR.)

testified in opposition.(R. 324-365) An attorney

(Heidecke) injected an irrelevant incident,

which was intended to be derogatory of the

Applicant, (R. 365-400) but not found to be so.

(F. 35, pp. 9-10)

As stated in his petition, (Par. 2A),

Walter Ascher, the Applicant, has neither been

charged with nor found in violation of a moral

~~

precept, a statute, an ordinance, a rule with

the force of law, a regulation, a canon of ethics

or of professional responsibility.

Instead, the Committee concluded that:

"The representation of Trust No.

1737" which was not the owner,

“was improper". (No. 2, pg. 10)

The Applicant (a) signing Kaczmarek's

name and, (b) “knowingly allowing

Darienzo to sign Kaczmarek's sig-

natures was improper". (Nos. 3

and 4, id.)

"The procedure followed (in these

two sales) are unconscionable" and,

"indicate to the Committee a serious

defect in the character of the Ap-

plicant." This, it concluded, made

him "unfit". (No. 5 pp. 10-11)

None of these conclusions are supported

by the evidence.

Due process applies to the administra-

tive process, (Schware v. Board of Bar Examiners,

353 US 232, 238) and, particularly "when there

is no basis for their finding that he fails to

meet those standards, or where their action is

invidiously discriminating" (id., at 239) "It

=

is a violation of due process to convict and

punish a man without evidence of his guilt."

(Thompson v. City of Louisville, 362 US 199,

203, See too, Vajtauer v. Council of Immigration,

273 US 103, 107. There the Court also pointed out

that that doctrine excludes erroneous decisions

and wrongful admission of irrelevant evidence.

The Applicant's argument here excludes them,

also. The error here was to ignore the evidence

in support of the Applicant, and, to make findings

unsupported by evidence. "It is beyond question,

of course, that a conviction based on a record

lacking any relevant evidence as to the crucial

element of the offense charged...violates due

process." (quoted in Vachon v. New Hampshire,

414 US 478, 480)

The issue here is much similar to that

in Konigsberg v. State Bar, 353 US 252. There

Konigsberg's position was characterized by this

Court: (at 256)

He asserted that he had

affirmatively proved his good

moral character and that there

was no legal basis for finding

that he was morally unfit to

practice law. He insisted that

in determining whether he was

qualified the Committee had to

comply with due process of law

and cited as supporting his

position Wieman v. Updegraff,

344 US 183, and Joint Anti-

Fascist Committee v. McGrath,

341 U.S. 123, where this Court

condemned arbitrary findings as

offensive to due process. Since

Konigsberg challenged the

sufficiency of the evidence

in his petition for review,

it seems clear that the State

Supreme Court examined the

entire record of the hearings

before the Bar Examiners and

must have been aware of the

constitutional arguments made

by Konigsberg during the hearings

and the authorities relied on

to support these arguments.

So, here, the petitioner and his

witnesses testified to what was done openly;

that more than value was delivered; that the

Purchaser got what he bought, used and enjoyed

it from the moment he bought to this day; and,

—22—

that the documents used to get it for him are

effective and of record at this moment.

Each of the proofs necessary to support

the propriety of what ASCHER had done is sup-

ported by a document having a legal, and to the

Committee, a moral import. Nothing which has

transpired, or been written by the Committee

reflects that a member of the Committee has

read them. The chronology and the exhibits were

filed in the Court below. (Exs. I to XXXV)

They were ignored.

Although procedural due process pre-

empts the attention of the Courts in most cases,

the end product of that procedure is the right

to be judged upon the evidence produced. In re

Oliver, 333 US 257 at 273, 275. Lacking that end

product the gag of Roy Bean (The law west of

the Pecos) to give the defendant "a fair trial

before we hang him", is no gag.

Due process must be accorded an attor-

ney in disbarment proceedings. However, it may

=—

fail for want of an agreement on the moral

quality of the attorney's conduct. In re Ruffalo,

390 US 544, at 556 (concurring opinion)

Due process requires that the findings

of an administrative body be supported by sub-

stantial evidence. Aberdeen & Rockfish R. R.

v. United States, 565 F2d 327, 334. In the

case at bar, there is no evidence which supports

the conclusion that this Applicant lacks "good

moral character", and none that he is "unfit"

to practice law. The evidence produced by this

Applicant supports both requirements of Rule

708 (b) of the rules of this Court.

This Court here, may write exactly

what it wrote for Schware, with the same degree

of truth. "There is no evidence in the record

which rationally justifies a firding that Schware

was morally unfit to practice law." Schware v.

Board of Bar Examiners, 353 US at 246-47. ASCHER

is morally fit to practice law.

vA

=

CONCLUSION

The conclusion of "inexcusable" and

"unconscionable" are patently subjective con-

clusions. Whether the other party chooses to

"excuse", is just as constitutional as an

ordinance predicated upon whether a policeman

is "annoyed". Coates v. City of Cincinnati,

402 US 611, 614. Nothing, by nature is more

subjective than "conscience". It is a sister's

standard of condemnation of brothers’ who earn

money in ways the former disapprove; for example,

working on the Sabbath. But, the real issue

here is not the subjective nature of the Com-

mittee's and Court's disapproval. The Constitu-

tional issue here is that neither body had

evidence that this petitioner did anything

immoral, unethical or illegal. On the contrary,

this petitioner proved that he has the character

and the fitness to be licensed to practice law.

= =

"In this case we are compelled

to conclude there is no evidence

in the record which rationally

justifies a finding that Konigs-

berg failed to establish his

good moral character. . .

Without some reliable evidence

of unlawful or immoral actions

reflecting adversely upon him,

it is difficult to comprehend

why the State Bar Committee

rejected a man of Konigsberg's

backround and character as unfit

to practice law."

(353 US at 273)

So, here, it is equally unjust to

ASCHER to have his character besmirched, by

a total lack of evidence produced. No wrong was

done. No hurt inflicted. No one was bested.

No law was violated. No canon of ethics or moral

command transgressed. The doctrine of Schware

and Konigsberg should be renewed.

NCIS X. RILE

1 S$ 101 Rt. 53

Glen Ellyn, Illinois 60137

Attorney for the Petitioner

Appendices

— la—

(No. MR 2391.—Petition denied.)

In re WALTER A. ASCHER, Petitioner.

Opinion filed May 22, 1980.—Rehearing

denied September 26, 1980.

MR. JUSTICE UNDERWOOD delivered the opinion of

the court:

The issue here is whether Walter A. Ascher is “‘of good

moral character and general fitness to practice law” as

required by our rules (73 Ill. 2d R. 701(a)) for admission

to the bar of Illinois. The Committee on Character and

Fitness for the Second Judicial District (Committee)

reported that it could not so certify (73 Ill. 2d R. 708(c)).

Ascher now petitions us to admit him to practice (73 II.

2d R. 708(a)), asserting the Committee’s action to be arbi-

trary and unwarranted.

Petitioner passed the examination conducted by the

State Board of Law Examiners in February 1979. On

April 16, petitioner, as required by the Board, filed its

form entitled ‘Additional Questionnaire and Statement of

Applicant” supplementing the original questionnaire filed

in November 1977 containing his original responses to

questions concerning character, fitness and_ personal

history. In the additional questionnaire, petitioner was

asked whether he had “ever been a party (either plaintiff

or defendant) to or otherwise involved in any action or

legal proceeding either civil or criminal or quasi-criminal,

including any proceedings in a juvenile court?” He re-

sponded: “No change.” The fact was, however, that on

the preceding November 2, 1978, a civil suit, Alloy Piping,

Inc. v. Ascher et al., had been filed in the circuit court of

—)

Du Page County, naming petitioner as a defendant. The

allegations in that complaint, which was still pending,

made serious charges of misconduct against him. It is

largely the failure to disclose the existence of that lawsuit

and the Committee’s findings regarding the conduct of

defendant upon which the suit was predicated which

prompted the Committee’s refusal to certify petitioner.

The plaintiff, Alloy Piping, Inc. (Alloy) alleged in

count I of its complaint that petitioner occupied a fiduci-

ary relationship to it since he had served as its tax ac-

countant for three years and as its agent-broker for the

purchase of real estate. Alloy also alleged that petitioner

represented that he would act as Alloy’s “‘agent-broker” in

connection with the contemplated purchase of another

tract of land, and that petitioner “‘controlled”’ this tract.

Relying on those representations Alloy on April 18, 1978,

signed a contract for the purchase of the property at a

price of $120,000. The contract described the seller as

“Bank of Lyons Trust No. 1737,” and was signed by

petitioner “‘as beneficiary of Bank of Lyons. Trust No.

1737.” Pursuant thereto, Alloy tendered to petitioner a

check for $12,000 made payable to petitioner’s real estate

agency, as escrowee. It was additionally alleged that

neither petitioner nor Trust No. 1737 held an interest in

that real estate on April 18; that petitioner at that time

knew that there existed a contract dated April 1 for the

sale of the same land by another person, as beneficiary

under Trust No. 1737, Bank of Lyons, for a price of

$109,000; and that petitioner wilfully, maliciously and

fraudulently withheld from Alloy his knowledge of the

preexisting contract.

It was further alleged that rotiiiuner violated his fidu-

ciary duties to Alloy by failing to disclose that he, after

learning of Alloy’s interest, arranged for the sale of this

real estate by the actual owners, Robert and Dorothy

Freston, to Winfried and Mildred Kaczmarek for $100,000

—3a—

pursuant to an agreement between the Kaczmareks and

petitioner to share the profit from the subsequent sale to

Alloy at the higher price; and that petitioner received a

real estate commission on the Freston-Kaczmarek sale. It

was further alleged in reference to the Freston-Kaczmarek

sale that petitioner knew a $75,000 mortgage was given to

the Frestons by the Kaczmareks and recorded, but that

the existence of this mortgage was fraudulently withheld

from Alloy.

It was also alleged that petitioner tendered to Alloy a

Chicago Title and Trust Company commitment for title

insurance in the amount of $120,000 which gave no indi-

cation of the existence of a mortgage on the covered

property. The complaint also charged that the original

commitment for title insurance, which was in petitioner’s

possession, was in the amount of $100,000 and noted the

existence of the $75,000 mortgage. It was additionally

asserted that petitioner not only fraudulently withheld

this material information from Alloy, but had also altered

the copy of the title commitment policy tendered to Alloy

by deleting the reference to the mortgage and changing the

amount of the policy from $100,000 to $120,000. It was

further alleged that at or prior to the time of closing, peti-

tioner forged the signatures of Winfried and Mildred

Kaczmarek to the affidavit of title, warranty deed and

closing statement, and that the warranty deed prepared by

petitioner made no mention of the mortgage. In addition

the complaint alleged that petitioner had fraudulently

deposited a cashier’s check for $106,952.76, made payable

to the Bank of Lyons Trust No. 1737 and representing the

amount due the sellers at closing, in his own account in

his own name at the Elmhurst National Bank. Also alleged

was Alloy’s repeated demand upon petitioner for the clear

title which Alloy had learned it did not have. Temporary

injunctive relief, actual and punitive damages and a

declaration holding petitioner in contempt of court for

—da—

the unauthorized practice of law were prayed.

Counts II and III of the complaint were directed

toward Village Center Realty, Inc., and the Kaczmareks,

and the entire complaint was verified. On December 22, an

apparently unverified answer to the complaint was filed.

Petitioner signed his attorney’s name but with his own

initials in parentheses. During oral argument counsel for

petitioner submitted a motion, which we now allow, to

supplement the record with a copy of a motion for sum-

mary judgment filed on behalf of petitioner and denied by

the trial court.

Upon learning that this undisclosed suit was pending,

and had been pending against petitioner at the time he

completed the additional questionnaire, the Committee

notified him and conducted a hearing during which some

six witnesses, including petitioner, testified and numerous

exhibits were admitted. It will be necessary to relate that

evidence in some detail.

Following his 1962 graduation from high school,

petitioner was employed by various companies for varying

periods of time. He also attended several educational insti-

tutions on a part-time or evening basis, receiving an A.B.

degree from Northeastern Illinois University in 1973. He

commenced his law work on a part-time evening-class

basis at John Marshall Law School in 1970. In 1975 he

enrolled at Lewis University College of Law as a full-time

student and graduated in January 1978. Since 1974 he

has conducted an accounting business under the name of

Ascher Accounting and has been a licensed real estate

broker and agent doing business as Village Center Realty.

He is also a licensed insurance agent and broker and an

“enrolled agent” with the Internal Revenue Service. The

“Certificate of Ownership of Business Firm” filed in the

office of the county clerk of Du Page County under “‘An

Act in relation to the use of an assumed name in the con-

duct or transaction of business in this State” (Ill. Rev.

—5a—

Stat. 1977, ch. 96, pars. 4 through 8a) lists Walter Ascher

as “owner of” Addison Legal Services, and John A. Dari-

anzo as ‘‘(Transacting Business)”. The business card for

Addison Legal Services lists Walter A. Ascher as “‘business

manager.” “Addison Legal Services” was apparently

adopted in November 1978 by Ascher and Darianzo as a

business name and discontinued in May of 1979 when a

new lawyer was informed by the Illinois State Bar Associa-

tion that use of the name was improper.

During its existence Addison Legal Services shared

with one of the two Village Center Realty offices and with

Ascher Accounting approximately one-third of a building

in Addison, owned by petitioner, the balance of which was

rented to other small businesses. On the left front of that

building above the windows in large letters appear the

words

ACCOUNTING & TAX SERVICE VILLAGE CENTER REALTY

LAW OFFICES

530-1020

In addition to the larger signs, there is a third sign, smaller

and slightly below the other two, upon which appear the

words ‘‘Cunningham and Wood, Attorneys at Law.” There

is a doorway between the large signs and a second doorway

to the right of the realty sign. A diagram of the interior

seems to indicate a partition separating the law office from

the accounting and real estate offices with communicating

doors between them. Apparently a single telephone

number served all three. The Addison Legal Services

stationery contained the name of John Darianzo as “of

counsel.”” Cunningham and Wood are two attorneys

admitted to practice in 1978. They apparently practiced

in Aurora but were joining Addison Legal Services when

Darianzo moved to Texas. Although their names appear on

the outside of the building in a photograph taken at some

undisclosed date, it is not at all clear that either Cunning-

ham or Wood ever practiced at that address or that either

—6a—

was a part of Addison Legal Services during the period

here involved. Their names do not appear on the station-

ery.

With reference to the Freston-Ascher-Kaczmarek-Alloy

real estate transaction which culminated in the undisclosed

lawsuit, petitioner testified that Mr. and Mrs. Freston had

moved to Florida and wanted to sell a tract of real estate

known as Lot 4, and that on September 16, 1977, Win-

fried Kaczmarek entered into a contract with the Frestons

to buy Lot 4. (The September 16, 1977, “contract” in

the record, however, is one on which only one signature

appears: Winfried Kaczmarek. The record does contain a

contract bearing the signatures of Mr. and Mrs. Freston

and Winfried Kaczmarek for the sale of Lot 4 to Kacz-

marek for $100,000. That contract is dated April 22,

1978, which, we note, was four days after petitioner had

contracted to sell Lot 4 to Alloy for $120,000.)

Petitioner further testified that in December Mr.

Freston suggested they change to an “installment sale”

secured by a mortgage on Lot 4 to the Frestons; that Mr.

Kaczmarek accepted the new terms which were “$25,000

down and $25,000 over a three-year period in annual

installments” with a $75,000 mortgage on Lot 4 as secu-

rity; that petitioner told Mr. Freston that petitioner “was

interested in going with Mr. Kaczmarek into Lot 4 because

of our subdivision we were trying to make,” and that it

might be necessary to transfer the mortgage to another

piece of property, to which he said Mr. Freston agreed.

Petitioner also testified that he and Kaczmarek were

unsuccessful in acquiring other property for the subdivi-

sion and decided in January 1978 to sell Lot 4; that in

April Thomas Brewer, Sr., one of Alloy Piping’s owners,

came to the office to have the corporate income tax return

prepared; that he was looking for industrial property, and

petitioner succeeded in arranging for him the mid-April

purchase of approximately two acres adjacent to Lot 4;

—Ta—

that sale was closed in “our office” with the seller and his

attorney and Brewer and petitioner present. According to

petitioner, Brewer and he then entered into a contract for

the purchase by Brewer of Lot 4, petitioner signing that

contract as beneficiary of Bank of Lyons Trust No. 1737

although the trust had never had, and never acquired, title

to Lot 4. The Freston-Kaczmarek sale of Lot 4 was closed

May 22. The closing statement shows a total purchase

price of $100,000, with a purchase-money mortgage from

the Kaczmareks to the Frestons for $75,000. A $10,000

real estate commission was payable to petitioner’s firm.

The Kaczmareks’ names were signed to the closing state-

ment by Darianzo.

On July 6, petitioner testified, the Ascher-Alloy sale of

Lot 4 was closed. Petitioner said Brewer had “been made

aware that the property was encumbered with a $75,000

mortgage”; that Brewer was concerned about his title and

was told by petitioner that all incumbrances would be re-

moved “relatively soon”; that Brewer wanted to know

“what his title opinion was going to look like,” and that

petitioner took an old title opinion from the Kaczmarek-

Preston closing, masked out with a picce of paper the

reference to the mortgage on page 1 and ran it through a

copier, changed the amount of insurance from $100,000

to $120,000 and showed it to Brewer as illustrating the

policy which would be issued to Brewer. Petitioner testi-

fied that he eliminated the mortgage from the first page,

but that it was also referred to on the later pages; he also

stated that he, Brewer and Darianzo were present when

this was done; that Brewer was very much concerned

about the mortgage and that petitioner promised to clear

the title, but that there was no written agreement to that

effect. Petitioner stated he prepared the closing statement,

affidavit of title, and the deed; that he felt qualified to do

so because he had a 50/50 interest with Kaczmarek. He

had the executed deed sent to the recorder’s office, and it

—8a—

reached that office. He left for Europe at the end of July

with his family and stayed five weeks. When he returmed,

the Brewers were upset. They had not received the deed,

had employed counsel, gone to the title company office,

found the Kaczmareks still had title, and the mortgage was

still on the land, even though they had paid the full pur-

chase price to petitioner on July 6. Petitioner testified he

was ready to pay off the mortgage in the fall, but that Mr.

Freston did not want the money until the following Janu-

ary, and that it was paid and the mortgage released in

January 1979. Petitioner also testified that at some time

after the filing of the Alloy lawsuit in November 1978 he

prepared a written power of attorney from the Kacz-

mareks to him. That power of attorney pertained to the

Lot 4 property, indicated petitioner had an interest in the

property, and gave him blanket authority to act for the

Kaczmareks. That document was backdated to November

25, 1977, and was acknowledged before a notary on April

9, 1979.

Petitioner also testified that he did not list the pending

Alloy lawsuit in his additional questionnaire dated April

16, 1979, because he thought it was listed in his applica-

tion to take the bar examination for the third time, which

he filed in November 1978. Those applications, however,

contained no questions regarding court actions involving

applicants. Only the character and fitness questionnaire

inquired as to court actions, and petitioner had filed it in

November 1977, a year before the lawsuit in question had

been initiated.

Under questioning by Committee members petitioner

stated his position regarding his fiduciary relationship with

Alloy and its owners was that such relationship embraced

only the tax return. In closing the sale between Kacz-

mareks and Alloy, petitioner stated Brewer was not

represented but closed the transaction “‘on his own”’; that

petitioner signed the Kaczmareks’ names to the closing

—9IJa—

statement although = “‘was not sure” Brewer knew that.

“John Darianzo was there representing Mr. Kaczmarek’s

interest ***,” Even though petitioner owned a 50%

interest, he did not sign the closing statement in his own

name. When asked “‘why,” he replied, ““Because the deed

had corae from Kaczmareks’ to Brewer and I felt I didn’t

want to mess up my interest by having it go any further.”

He maintained, however, that Brewer knew of his interest.

He admitted that he had signed the Kaczmareks’ names to

the deed, and that Darianzo had notarized it, and that

Darianzo had signed Mr. Kaczmarek’s name to the “plat

act affidavit’? and notarized that, too. He attempted to

explain the absence from the closing statement of any

reference to the mortgage by saying he had promised

Brewer to remove the mortgage “and that’s why I didn’t

put it on the closing statement.” Petitioner admitted there

were no efforts made to remove or transfer the mortgage

from the property being purchased by Brewer between the

time Brewer signed the contract in April and the July 6

closing date. There was no discussion with Brewer of the

possibility of his company buying the property subject to

the mortgage.

In the questioning of petitioner by committee mem-

bers it also developed that in at least one other real estate

transaction (Bernacki) petitioner and Kaczmarek were the

actual buyers although petitioner and Darianzo were

shown as such. A $10,000 real estate commission was

charged the seller there as well as in the Freston sale, a

practice petitioner thought proper as long as the parties

didn’t object. It was also established that petitioner had

signed the Kaczmareks’ names to an affidavit of title on

which a secretary in petitioner’s accounting office had

executed the jurat. His explanation for the various irregu-

larities was that they were trying “‘to save paperwork”’ and

took “‘too many shortcuts.”

John Darianzo testified he had been admitted to prac-

—10a—

tice about 5 years, 2% of which were spent in Kane

County and the balance in Du Page County, all as a sole

practitioner. He rented space from petitioner and did

some work for him for which he received credit on the

rent. He and petitioner formed Addison Legal Services

because Darianzo wanted to move to Houston as soon as

petitioner was admitted to the bar; “we knew we were

going to get Phil Wood and Jack Cunningham in there

to take over some of the stuff,” and “we wanted to keep

it as open as possible.” Darianzo admitted he signed the

names of Winfried Kaczmarek and Mildred Kaczmarek

to a corrective trust deed and Winfried Kaczmarek’s name

to a “plat act affidavit” with only oral authority from

Mr. Kaczmarek and without talking to Mrs. Kaczmarek,

whom he did not know but who was ill, and that he then

notarized the affidavit himself. He also testified that

Brewer was informed of the mortgage on the Freston

property and that it would be removed; that Brewer knew

of the alterations in the title policy documents; and that

the mortgage reference was blocked out and the amount

increased so that Brewer could see what the title was

“going to look like when I get it back.” He thought a

secretary might have made the changes—“I don’t recall.”

He excused the absence of a written power of attorney and

signing the Kaczmareks’ names without noting his agency

on the grounds that the Kaczmareks lived in Rockford,

some distance away. The fact that he had signed the Kacz-

mareks’ names was not disclosed to Brewer. He conceded

his actions were “‘a little bit improper,” but he was “‘try-

ing to expedite the matter.” The fact that he was

shown, on the closing statement prepared by him, as one

of the buyers in the Bernacki real estate transaction in

which he actually had no interest was “inadvertent”; he

could not recall why he was shown as the seller in the

closing statement prepared by him in the Sollitt real estate

transfer when he had no interest in it. He agreed that his

—lla—

listing as “of counsel” on the Addison Legal Services

stationery implied the presence of other lawyers although

there were none, but denied this was done to convey the

impression that petitioner was a licensed attorney. Accord-

ing to Darianzo, petitioner’s responsibilities in connection

with Addison Legal Services were those of a landlord, but

that petitioner also handled the billing and collection of

the fees for legal services. Checks on Darianzo’s business

accounts had to be signed by any two of Darianzo, his

secretary, petitioner or petitioner’s wife.

Winfried Kaczmarek testified he had known petitioner

six to eight years; that they had been and were in several

real estate and business ventures together; that he had

given him verbal authority to sign any necessary papers

and take any necessary action in connection with any of

their transactions; that he had never had any occasion to

question petitioner’s handling of his money, and that

“As far as I am concerned, if he [petitioner] wants some

money from me right now, he has got it.’

Mrs. Bernacki testified that she had no complaints

regarding petitioner and related her efforts to persuade

the Frestons, whom she knew well, that petitioner, whom

she had recommended to them, was reliable and that they

need not worry about the mortgage regarding which

they were receiving calls from Brewer.

Thomas Brewer, Sr., testified that he had asked peti-

tioner about Lot 4, which was offered to them by another

realtor; that petitioner said he controlled it and “could

sell it to us direct” at a cash price of $120,000; and that

a contract for its purchase was subsequently signed. During

the first part of July the witness went to petitioner’s office

with a check for the property which he gave petitioner.

The witness wanted to take the deed to have it recorded,

but petitioner said he preferred to do it. There was no

mention of any mortgage until July 28 when he received a

letter from the bank which had taken title as trustee for

—12a—

him. He had received a title commitment at the closing,

but there was no change made in it that he knew about,

and he did not know until after talking to the bank that

a mortgage reference in the title commitment given him

had been blocked out. John Darianzo had been sitting

at his desk on the other side of the room while the witness

dealt with petitioner. On other occasions when the witness

had purchased real estate he had retained a lawyer, but

he assumed petitioner was one. All of the sellers’ signatures

on the document had been affixed before the witness

arrived. Brewer was asked about an October 19, 1978,

letter to petitioner which referred to “clear title’? being

promised on July 6 and three specified September and

October dates. That reference was explained as resulting

from the witness’ efforts to get a closing date set and

petitioner’s indication that he would have it “‘all com-

plete” on the 6th. Brewer again asserted that there was no

disclosure of the mortgage or discussion about it until

after the July 28 notice from the trustee bank. He stated

that he no longer had any faith at all in petitioner.

The final witness before the Committee was Bruce

Heidecke, a lawyer who represented the Frestons in their

sale to Kaczmarek. He testified that at no time during

that transaction did he or his clients know that petitioner

was a partner with Kaczmarek. He also testified to partici-

pating in a December 20, 1977, real estate closing in which

petitioner appeared. The witness represented the seller,

and petitioner, who was not the broker in the sale,

appeared to represent the Garzas, who were buying the

property. Petitioner, Heidecke testified, took all of the

documents tendered by Heidecke, examined them and

explained their significance to the Garzas. Although

petitioner did not so state, the witness assumed peti-

tioner to be the Garzas’ lawyer. Petitioner subsequently

filed an affidavit stating he attended the closing solely as a

broker and fiiend of the Garzas. The affidavit does not

—138a—

indicate petitioner to have acted as a broker in that sale; it

does state petitioner did not charge a fee and did not

represent himself to be a lawyer.

A number of letters and statements from clients,

friends and community residents, including a Lewis

University professor, were filed attesting to petitioner’s

honesty and competency.

The Committee filed with the Board a unanimous

report reciting the evidence and stating certain conclu-

sions. Petitioner’s conduct was found to be “inexcusable,”

and the report indicated the Committee could “not

accept” petitioner’s explanation of his failure to disclose

the Alloy Piping litigation. The Committee found “‘uncon-

scionable” the procedures followed by petitioner, particu-

larly with reference to the Alloy and Freston transactions,

indicating to the Committee ‘‘a serious defect in the char-

acter of the applicant, rendering him unfit to practice law

in Illinois.” A further reason for denying certification was

found by the Committee in its belief that “the procedure

followed with respect to the ‘Addison Legal Service’ was

simply a subterfuge to permit Ascher to practice law with-

out a license.”

It is well established that the exercise of discretion

by a committee on character and fitness in its considera-

tion of an applicant’s fitness for admission to practice

law in this State will not be reversed by this court unless

certification has been arbitrarily refused. (See In re

Latimer, (1957), 11 Ill. 2d 327, 330, appeal dismissed

(1957), 355 U.S. 82, 2 L. Ed. 2d 111, 78 S. Ct. 153;

In re Frank (1920), 293 Ill. 263, 264; see also Sprecher,

Admission to Practice Law in Illinots, 46 Ill. L. Rev. 811,

835 (1952).) It is, moreover, clear that the burden of

proving the requisite good moral character and fitness lies

on the applicant. See Jn re Martin-Trigona (1973), 55 I.

2d 301, 305, cert. denied (1974), 415 U.S. 910, 39 L.

Ed. 2d 465, 94 S. Ct. 1404; see also, Weiss, The Commit-

—l4a—

tee on Character and Fitness: The Supreme Court’s

Private Investigators!, 45 Ill. Bar J. 818, 822 (1957).

Recent decisions of this court have emphasized the

importance of an applicant’s duty to respond fully and

accurately to those questions posed in an application

for admission to the bar. (See Jn re Mitan (1979), 75 Ill.

2d 118, 127, cert. denied (1979), 444 U.S. 916, 62

L. Ed. 2d 171, 100 S. Ct. 231; In re Martin-Trigona

(1973), 55 Ul. 2d 301, 307, cert. denied (1974), 415 U.S.

910, 39 L. Ed. 2d 465, 94 S. Ct. 1404; see also Illinois

Code of Professional Responsibility, Disciplinary Rule

1—101(A) (1970); Committee on Professional Responsi-

bility, Proposed Draft, Disciplinary Rule 1—101(A)

(1980).) Other jurisdictions have similarly stressed the

requirements imposed by this duty on bar applicants. In Jn

re Willis, 288 N.C. 1, 18, 215 S.E.2d 771, 781, appeal

dismissed (1975), 423 U.S. 976, 46 L. Ed. 2d 300, 96 S.

Ct. 389, the North Carolina Supreme Court stated: “‘Mis-

representations and evasive or misleading responses, which

could obstruct full investigation into the moral character

of a Bar applicant, are inconsistent with the truthfulness

and candor required of a practicing attorney,” citing,

Carver v. Clephane (D.C. 1943), 137 F.2d 685, In re

Meyerson (1948), 190 Md. 671, 59 A.2d 489, In re Green-

blatt (1938), 253 App. Div. 391, 2 N.Y.S.2d 569, and

Annot., Admission to Bar—Moral Character, 64 A.L.R.2d

301, 318 (1959).

Because committees on character and fitness lack the

personnel and other resources to conduct independent

investigations of bar applications, they are obliged to rely

primarily on truthful answers by the applicants to commit-

tee questionnaires as a source of material information.

Failure to answer truthfully and fully has been held

tantamou. t to a fraud upon this court and has resulted

in the imposition of severe disciplinary measures. In re

Mitan (1979), 75 Ill. 2d 118, 127, cert. denied (1979),

—15a—

444 U.S. 916, 62 L. Ed. 2d 171, 100 S. Ct. 231, citing

People ex rel. Healy v. Propper (1906). 220 Ill. 455,

People ex rel. Deneen v. Gilmore (1905), 214 Ill. 569,

and People ex rel. Deneen v. Hahn (1902), 197 Ill. 137.

When requested to list on his original questionnaire

any action or legal proceeding, civil or criminal, in which

he had been a party or otherwise involved, petitioner

listed eight actions in which he was apparently a party

and an unspecified number of traffic violations. When

requested to update that list in a supplemental question-

naire, petitioner failed to indicate that Alloy had filed a

suit against him by responding that there had been “no

change”’ since the filing of his original statement. Peti-

tioner has attempted to explain this false response by

claiming that he believed the lawsuit had been reported on

an earlier form. The Committee obviously did not believe

that explanation, and the members’ disbelief certainly

cannot be said to be contrary to the manifest weight

of the evidence. The creditability of petitioner’s

explanation is further strained by the fact that he stated

in his sworn petition filed with this court that the Alloy

suit ‘‘wasn’t of such legal and ethical concern that it would

inevitably impress one’s consciousness, to the necessity

of suppression.” This assertion that the charges of forgery

and fraud contained in the complaint filed by Alloy were

not such as to cause serious concern regarding petitioner’s

moral character simply emphasizes petitioner’s insensi-

tivity to the improprieties and irregularities evidenced by

his earlier conduct. Like the record in this case, peti-

tioner’s explanation demonstrates the existence of funda-

mental questions regarding petitioner’s capacity to make

those ethical judgments required of an attorney in the

course of his practice and the performance of his fiduciary

responsibilities. We can conclude only that the Commit-

tee’s refusal to certify petitioner is not contrary to the

manifest weight of the evidence. Indeed, it seems to us

—16a—

the only conclusion a conscientious committee could

reach.

If, however, further proof of unfitness were thought

to be necessary, it is readily available in the fact that

petitioner not only knew Darianzo had signed the

Kaczmareks’ names to the mortgage, but, incredibly,

Darianzo had also signed Mr. Kaczmarek’s name to the

title affidavit, notarizing it as well; additionally, petitioner

himself had signed the Kaczmareks’ names to a deed and

affidavit and had his secretary execute the jurat. Leaving

aside the matter of the deeds, the gross impropriety in

the execution and notarization of the affidavits is obvious

even to the untrained mind. In neither case, apparently,

was this procedure known to the other concerned parties.

During oral argument of this case, counsel for the

Committee noted two other misrepresentations in peti-

tioner’s supplemental statement. When asked whetner he

had ever worked in a law office or had otherwise been

employed by a lawyer, petitioner answered ‘‘no,” in the

original questionnaire, and ‘‘no change,” on the supple-

mental statement. He did so despite the fact he was the

registered owner of Addison Legal Services and had been

serving as its business manager. In addition, he had

answered ‘“‘no” on both forms to the question whether

he had ever been “‘accused by any employer, superior,

associate, customer or other person of dishonesty in

connection with any employment or occupation,” even

though the Alloy suit charged him with gross misconduct

including fraud and forgery.

Petitioner has repeatedly asserted in oral argument

and in his briefs that Alloy has received what it paid for

as though the belated payment and release of the mortgage

completely eliminated all problems. True, Alloy appar-

ently has, several months after filing a lawsuit to compel

it, received the clear title to Lot 4 for which it paid some

six months earlier. But the character and fitness require-

—17a—

ments of the legal profession are not met simply by

ultimately delivering that which was wrongfully withheld

originally. The integrity of our profession can be no

greater than that of its members, and we protect neither

our profession nor the public when we admit to the

profession those who have demonstrated the insensitivity

to its standards which is evident here.

The petition for admission to the bar of this State

is denied.

Petition dented.

—18a—

UNITED STATES OF AMERICA

STATE OF ILLINOIS

SUPREME COURT

AT A TERM OF THE SUPREME COURT, begun and held

in Springfield, on Monday, the eighth day of September

in the year of our Lord, one thousand nine hundred and

eighty, within and for the State of Illinois.

PRESENT:

JOSEPH H. GOLDENHERSH, CHIEF JUSTICE

JUSTICE ROBERT C. UNDERWOOD

JUSTICE HOWARD C. RYAN

JUSTICE THOMAS J. MORAN

JUSTICE DANIEL P. WARD

JUSTICE WILLIAM G. CLARK

JUSTICE THOMAS E. KLUCZYNSKI

TYRONE C. FAHNER, ATTORNEY GENERAL

LOUIE F. DEAN, MARSHAL

ATTEST: CLELL L. Woops, CLERK

BE IT REMEMBERED, that, to-wit: on the 26th day of

September, A.D. 1980, the same being one of the days of

the term of Court aforesaid, the following proceedings

were, by said Court, had and entered of record, to-wit:

In re:

M.R. 2391

Walter A. Ascher

And now, on this day, the Court having duly

considered the petition for rehearing filed herein, and

being fully advised of and concerning the premises, doth

overrule the prayer of said petition and denies a

rehearing in this cause.