# Petition — Ascher v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 919

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0999%3A1. Public record. Not legal advice.