Petition for Writ of Certiorari — Levin v. Registration & Disciplinary Commission

1) Office - Supreme Court. US.

84-375 FILED

No. SEP 4 1994

ALEXANDER L. STEVAS

CLERK

In Tue

Supreme Court of the Anited States

OctosErR TERM, 1984

JACK M. LEVIN,

Attorney-Petitioner.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

WILLIAM J. HARTE

Wuuum J. Harts, Lr.

111 West Washington Street

Suite 2025

Chicago, Illinois 60602

(312) 726-5015

Attorney for Petitioner

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

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the petitioner is denied

due process and equal protection of the

laws upon the imposition of a disciplinary

sanction which is:

a) inconsistent with the

sanctions imposed upon attorneys

Similarly situated and,

b) in complete disregard of the

findings of fact and recommendations

of the Hearing and Review Boards

without clear and convincing evidence

of dishonesty, fraud, deceit or

misrepresentation in violation of

D.R. 1-102(a) (4) of the Illinois Code

of Professional Responsibility.

2. Whether the petitioner is denied

due process upon the rigid application of

a mathematically based sanction without

consideration for the compelling

mitigating circumstances presented by the

petitioner.

ii

TABLE OF CONTENTS

Page

Questions Presented For Review .....i

Table of Authorities . ...«+«-+«s«+e=vs iv

Course of Proceedings Below... ...1

JucisGiction « « 6+ s+ 6 6 *& 2:8 6 et we 8

Constitutional Provisions Involved... 4

State Rules Involved . . ...-+..«-.«- S§

Statement of the Case . .....-. « « 6

BO@CGRGEGUNRG »« «© © #© wee 2h eos oe oe sn 2 ©

The Suspension Order ......e. .- 13

APGUMORE «0 2 4-4. 68. * 6 oS ee eee

I. THE PETITIONER IS DENIED DUE

PROCESS AND THE EQUAL PROTECTION

OF THE LAWS AS A RESULT OF THE

ILLINOIS SUPREME COURT'S

ARBITRARY IMPOSITION OF A

SANCTION INCONSISTENT WITH

DISCIPLINE IMPOSED ON ATTORNEYS

CHARGED WTH SIMILAR MISCONDUCT

AND IN DISREGARD OF THE HEARING

AND REVIEW BOARDS' FINDINGS AND

RECOMMENDATIONS WITHOUT CLEAR

AND CONVINCING EVIDENCE OF

DISHONESTY, FRAUD, DECEIT OR

MISREPRESENTATION IN VIOLATION

OF D.R. 1°102(a) (4)... « « «© «© « - 36

iii

A. The Illinois Supreme Court's

Sanction Is An Arbitrary And

Discriminatory Deviation From

The Sanctions Imposed Upon

Those Attorneys Charged With

Similar Misconduct.. . .... 37

B. The Illinois Supreme Court

Ignored The Findings And

Recommendations Of The Hearing

and Review Boards Without

Clear and Convincing Evidence

of Dishonesty, Fraud, Deceit

Or Misrepresentation In

Violation of D.R. 1-102(a) (4). 47

II. THE ILLINOIS SUPREME COURT'S

MECHANICAL APPLICATION OF A

MATHEMATICALLY DETERMINED

SANCTION IGNORED THE COMPELLING

MITIGATING CIRCUMSTANCES

SURROUNDING THE PETITIONER'S

MEGGwewcss we we eee eee ese 393

a ae ee ee ee ee ee ee ee ee ee ee

iv

TABLE OF AUTHORITIES

Barsky v. Board of Regents, 347 U.S.

442 (1953) = * 2 o e . 7 om e . . o . 33

Board of Regents v. Roth, 408 U.S.

eee (advan «6 6+ 6.6 6 He eA ee

Brinkerhoff-Faris Trust & Savings Co.

v. Hill, 281 U.S. 673 (1930) ... 26,27

Ex parte Burr, 22 U.S. 529 (1884) .. . 30

Ex parte Wall, 107 U.S. 265 (1883) .. 29

Great Northern v. Sunburst Oil &

Refinery Co., 287 U.S. 358 (1932) 25,26

In re Ahern, 23 I1l.2d 69, 177

N.E.2d 197 (1961) . 7 . 7 = . 7 19,40,45,

47,57

In re Chapman, 95 I11.2d 484, 448

N.E.2d 852 (1983) . . « «© « « « 197,45,46,

47

In re Clayter, 78 Ill.2d 276, 399

N.E.2d 1318 (1980) . .... .- «16,39,40

44,53

In re Cohen, 83 I11.2d 521, 416

N.E.2d 256 (1981) e . . © e . . * + e 48

In re Damisch, 38 I11.2d 195, 230

N.E.2d 254 (1967) . . * + + © . . 7 . 44

In re Donaghy, 402 I11.2d 120, 83

N.B.2d S60 (1949) . « «© © © © © © @ «© BL

Vv

In re Feldman, 89 Il11.2d 7, 431

Bee. see tape? «6 « « « © « « « « #&

In re Fisher, 15 I11.2d 139, 153

B.B.ae O32 (i998) « « 2 2 «6 0 ts BOe34e32

In re Hopper, 85 Il1.2d 318, 423

N.E.2d 900 (1981) . «. «© « « « « «© 49,54

In re Johnson, 93 I1ll.2d 441, 444

B.B.28 BSS (A982) «1 3 3 el 6 ee ABS Se

25,55,56

In re Kink, 92 I11.2d 293, 442

W.8.20 206 (i9G2) ss «© « «© « « £9948,63

44,49,50,57

In re Levinson, 71 I11.2d 486, 376

8.8.20 996 (i978) « «§ «6 © « 8 18,19,20

25,55,56

In re March, 71 I11.2d 382, 376

NW.B.2€ 213 (1978) . ~. « «© «© « © © 16,52

In re McLennon, 93 I11.2d 215, 443

N.E. 2a 553 (1982) J * + a _ — - es ” - 54

In re Neff, 83 I11.2d 20, 413 N.E.2d

1282 (1980) e ~ e e . * * ° e * * - o 30

In re Ruffalo, 390 U.S. 544 (1968) .. .37

In re Saladino, 71 I11.2d 263, 375

N.E.2d 102 (1978) . 2. «© « «© «© © © 039453

In re Taylor, 66 I11.2d 567, 363

N.E.2d 845 (1977) .~. « « « © « « 49,40,42

vi

In re Wigoda, 77 I11.2d 155, 395

N.E.2d 571 (1979) .« 2. «© © © © © © © © 49

Konigsberg v. State Bar of California,

353 U.S. 252 (1957) .~. . «© « « «28,34,37

51

McGowan v. Maryland, 366 U.S. 420

(1961) ° . . o . . . a . . . 7. . . . 33

Meyer v. Nebraska, 262 U.S. 390

(1922) 7 - . . e - . 7 ” - * . ” . . 39

Pruneyard Shopping Center v. Robins,

447 U.S. 74 (1980) . 2. 2. 2 «© «© «© «© © 226

Santosky v. Kramer, 455 U.S. 745

(1982) ° o 7. . . a ° . . . . . . . - 29

Schware v. Board of Bar Examiners, 353

U.S. 232 (1957) . . . . io . . . . . . 32

Spevack v. Klein, 385 U.S. 511 (1967) . 37

Theard v. United States, 354 U.S. 278

(1957) . . . 7 o — . . . . - - + . . 28

United States v. Johnson, 507 F.2d

826 (7th Cir. 1974) . .« « « « «© « « « 54

Williams v. Oklahoma, 358 U.S. 576

(1959) - - . - - - - . - . 7 a os o 7 54

Wisconsin v. Constantineau, 400 U.S.

433 (1971) - o - a . 7 — ” . - . a . 29

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

IN RE

JACK M. LEVIN,

= Attorney~Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Attorney-petitioner, JACK M. LEVIN

("petitioner"), respectfully requests that

a writ of certiorari issue to :2view the

judgment and opinion of the Supreme Court

of {fllinois entered April 4, 1984, by

which that Court suspended petitioner from

the practice of law in the State of

Illinois for three years and until further

order of the Court.

ele

COURSE OF PROCEEDINGS BELOW

This cause arises from a six-count

complaint filed on August 5, 1981, by the

Administrator of the Attorney Registration

and Disciplinary Commission against

petitioner.

Fach of the six counts of the

complaint charged petitioner with neglect

of legal matters entrusted to him in

violation of D.R. 6-10l1(a) (3) of the

Illinois Code of Professional

Responsibility, as well as with conduct

involving dishonesty, fraud, deceit or

misrepresentation in violation of D.R.

1-102(a) (4). A hearing was conducted on

January 14 and 15, 1982, at which time the

Hearing Board, finding that the six counts

of neglect, but not the misrepresentation,

were proven, unanimously recommended that

the petitioner be suspended from the

=2-

practice of law for a period of two

years. (Appendix C, Report and

Recommendation of Hearing Panel.)

Counsel for the Administrator fied

exceptions with the Review Board, alleging

that the Hearing Board had erred in

finding that petitioner was not guilty of

conduct involving misrepresentation in

violation of D.R. 1-102(a) (4) of the

Illinois Code of Professional

Responsibility, and that disbarment was

warranted. Petitioner filed exceptions to

the Report of the Hearing Board with

respect to the quantum of discipline

recommended.

On March 17, 1983, the Review Board

summarily affirmed the Hearing Board's

recommendation of a two-year suspension.

(Appendix D). The matter came before the

Illinois Supreme Court on exceptions filed

-3-

by the Administrator to the finding that

the misrepresentations alleged in Counts

I, III and V were not proved and to the

amount of discipline recommended upon

exceptions filed by petitioner to the

sanctions ordered by both Boards.

The Illinois Supreme Court, while

accepting the Hearing and Review Boards'

finding that the petitioner was not guilty

of misrepresentation, fraud or deceit,

nevertheless increased the recommended

sanction from a two-year suspension to a

suspension for three years and until

further order of the Court, on the grounds

that petitioner's conduct "went beyond

mere neglect." (Appendix A, 101 I11.2d

535, 463 N.E.2d 715 (1984.)*

*The Illinois Supreme Court's order

will be referred to herein as the

"Suspension Order."

-4-

JURISDICTION

The Suspension Order of the Illinois

Supreme Court was entered on April 4,

1984. A timely Petition for Rehearing

was denied on June 4, 1984. This

Petition for Writ of Certiorari was filed

within ninety days after the denial of

rehearing. Jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT XIV TO THE CONSTITUTION OF THE

UNITED STATES:

Section l.

--- No State shall make or enforce

any law which shall abridge the

Privileges or immunities of citizens

of the United States; nor shall any

State deprive any person of life,

liberty or property without due

process of law; nor deny any person

within its jurisdiction the equal

protection of the laws.

-5-

STATE RULES INVOLVED

ILLINOIS CODE OF PROFESSIONAL

RESPONSIBILITY:

A lawyer shall not... neglect a

matter entrusted to him. D.R.

6-101 (a) (3)

A lawyer shall not... engage in

conduct involving dishonesty, fraud,

deceit or misrepresentation. D.R.

1-102 (a) (4)

ILLINOIS SUPREME COURT RULE 771 FOR THE

ADMINISTRATION AND DISCIPLINE OF

ATTORNEYS, PART B:

Conduct of attorneys which

violates the Code of Professional

Responsibility contained in article

VIII of these rules which tends to

defeat the administration of justice

Or to bring the courts or the legal

profession into disrepute shall be

grounds for discipline by the

court. Discipline of attorneys may

be by:

(a) disbarment;

(b) disbarment on consent;

(c) suspension for a specified

period and until further order of

court;

(d) suspension for a specified

-6-

period of time ;

(e) censure.

STATEMENT OI THE CASE

Background

Petitioner graduated from John

Marshall School of Law in 1959. (Tr.,

169) From the time he obtained his

license in May of 1960 until he became a

sole practitioner in 1973, petitioner

practiced law in a number of reputable

Chicago firms. During the period covered

by the complaint, the petitioner was

engaged in high-volume plaintiff's

personal injury practice. (Tr., 171) As

a sole practitioner, he was known to be

an intense and highly motivated

individual, to the point of being a

vorkaholic. (Tr., 87) Handling hundreds

of files annually, petitioner felt

-7-

compelled to work extremel: long hours,

often seven days a week. (Tr., 172-173)

In fact, it was quite common for

petitioner to try 25 to 30 cases per year

to a verdict before a jury. (Tr., 171)

Many of the cases that he handled were

not only for relatively small amounts of

money, but were also very difficult cases

of contested, even questionable

liability. (Tr., 84, 889) As one

witness put it:

"Jack takes the hardest kinds

of cases with the most difficult

liability problems in the personal

injury field and tries to make

something out of them....

His reputation is of trying to

turn the garbage into gold.

Where most lawyers would just

give up on them, he takes them and

tries to do the best he can." (Tr.,

at 85)

There is no doubt then that petitioner's

-8-

practice involved the representation of

persons who probably would not have had

anybody to try their cases if petitioner

had not.

Eventually, petitioner's excessive

work habits began to have an adverse

impact on both his children and his

wife. (Tr., 174) Unhappy with her

husband's workaholic tendencies and his

inability to devote more time to personal

matters, petitioner's wife filed for

divorce in 1973 or 1974. (Tr., 173,

175) It was around this same time that

petitioner's oldest daughter began to

experience serious emotional problems,

ultimately suffering a nervous breakdown

on two different occasions. (Tr., 175,

199) The situation progressively

deteriorated, culminating in petitioner's

wife and daughters having to undergo

-9G-

psychiatric treatment. (Tr., 174, 206)

Unfortunately, the difficulties

encountered by petitioner in his personal

life, coupled with the enormous demands

of a high volume practice ultimately led

him to neglect a number of legal matters.

Realizing that he had over-extendea

himself, and admittedly impelled to a

great extent by the threatened

disintegration of his family, as well as

by the incidents which precipitated a

prior suspension from the practice of

law, petitioner began to change his

Practice drastically sometime between

1973 and 1976. (Tr., 175-177, 192, 204,

206) Whereas, originally, his law

practice was comprised of cases taken

directly by the petitioner from the

client at the outset of the claim, cases

reterred to him at some point during

-l10-

pendency by other attorneys, and cases

referred to him specifically for trial,

respondent now began to make good faith

attempts to accept only cases, on

referral from other lawyers, that were

getting close on the trial call. (Tr.,

175-176) Today, ninety percent of

petitioner's practice is made up of files

that are within three or four months of

trial. (Tr., 176)

Petitioner has also taken

considerable measures to review his

practice so that nothing like that which

has been alleged in the complaint can

happen again. (Tr., 177) First, he has

taken steps to have a much better

indexing of the cases. (Tr., 177)

Second, he has advised all of his

referring attorneys to handle all

depositions except those of substantial

-ll-

cases. (Tr., 177) Third, petitioner has

drastically reduced the number of cases

requiring clients to come to him

initially. (Tr., 177) He opens no more

than fifteen new files a year now,

preferring instead to leave the client

contact to his referring sctexeure.

(Tr., 177) Furthermore, in addition to

making a special effort to return all

phone calls, petitioner has reduced the

number of hours he customarily worked on

a weekly basis, making a special point to

avoid the office on Saturdays altogether.

William Maddux, a trial attorney from

the Chicago legal community, who has

practiced law for 23 years and has known

petitioner continuously on a professional

basis for that same period of time,

testified as to petitioner's honesty,

integrity, good moral character, and

-12-

fitness to practice law. (Tr., 160) Mr.

Maddux stated:

"In my opinion and from my

personal observations, Jack Levin is

an able, competent trial lawyer.,

Not only able and competent, but a

person you can believe.

I never found him to make a

Statement that was deemed or found

to be untrue. I can assure you his

work is good.” (Tr., at 161)

Furthermore, according to Mr. Maddux,

who related he has had ample opportunity

to observe petitioner's professional work

over the years, petitioner served his

clients well and loyally and to the best

of his ability. (Tr., 161) This is

significant in light of the fact that

petitioner had a reputation in the

Chicago legal community for handling very

difficult cases. (Tr., 84) Yet, as Mr.

Maddux noted, "I never saw anything other

than able handling." (Tr., 161-162)

-13-

Notwithstanding the incidents of

neglect in the instant case, Mr. Maddux

testified he is still of the opinion that

petitioner is competent to practice law.

(Tr., 166)

The Suspension Order

The Illinois Supreme Court, after

reviewing the findings of fact and the

recommendations of the Hearing and Review

Boards considered two issues: 1) whether

the Hearing and Review Boards erred in

not finding dishonesty or

misrepresentation in petitioner's

conduct, and 2) whether the two year

suspension recommended by both the

Hearing and Review Boards was appropriate.

In its opinion, the Court acknowledged

the findings of the Hearing and Review

Boards inasmuch as they found no evidence

-14-

of misrepresentation, fraud or deceit in

violation of D.R. 1-102(a) (4). However,

despite the concession that there was no

violation of D.R. 1-102(a) (4) and the

recognition that “we gave considerable

deference to findings of fact by the

Hearing Board," the Court chose to ignore

the Boards‘ recommendations of a two-year

suspension on the grounds that: (1) the

petitioner's “blatant misstatements” went

“beyond mere neglect" and (2) the

petitioner had engaged in six instances

of misconduct subsequent to a previous

sanction. Specifically, the court stated

that while the findings of the Hearing

Board “are entitled to the same weight as

any other fact finder" and are accorded

“considerable deference" by the Supreme

Court, the Court was “not required to

-15-

accept them when the Board's conclusion

is not established by clear and

convincing evidence." 101 I11.2d at 539,

540.

Significantly, the Supreme Court

rejected as against “clear and convincing

evidence" only those findings of the

Board relating to the petitioner's

quantum of neglect. However, in imposina

the increased sanction of a three-year

suspension and “until further order™ on

the finding that petitioner's conduct

involved “blatant misstatements," the

Court sought to impose a sanction

tantamount to disbarment and appropriate

only in those circumstances where

dishonesty, actual misrepresentation,

fraud or deceit in violation of D.R.

1-102(a) (4) has been demonstrated by

Clear and convincing evidence. In re

-16-

March, 71 I11.2d 382, 376 N.E.2d 213

(1978). Thus, the Illinois Supreme

Court, on the same set of facts and with

no additional finding of a D.R. 102(a) (4)

violation as requested by the

Administrator, deemed it proper to not

only augment the period of suspension,

but to considerably aggravate the

harshness of the sanct.ion by prohibiting

reinstatement "until further order of the

Court." 101 I11.2d at 542.

In this context, it is important to

note that the court expressly recognized

that in order to safeguard the public and

Maintain the integrity of the legal

profession, "it is important that there

be uniformity in the sanctions afforded

to different attorneys.” 101 I11.2d at

541, citing In re Clayter, 78 I11.2d 276,

399 N.E.2d 1318 (1980). Nevertheless, in

-17-

distinguishing or ignoring those

disciplinary cases in which it had

ordered significantly lighter sanctions

on facts substantially congruent with

those material to the instant case, the

Illinois Supreme Court inexplicably chose

to disregard this standard. Distinguish-

ing In re Chapman, 95 I111.2d 484, 448

N.E.2d 852 (1983), solely on the basis of

that respondent's alcoholism, the Court

unfairly trivialized the compelling

circumstances surrounding the

petitioner's misconduct in this case and

ignored the fact that the respondent in

Chapman had a history of previous

disciplinary sanctions and made repeated

"prejudicial misstatements" to his client.

The Court maintained that its

decision in the instant case was

consistent with the discipline imposed in

-18-

In re Johnson, 93 I11.2d 441, 444 N.E.2d

153 (1982) and In re Levinson, 71 I11.2d

486, 376 N.E.2d 998 (1978), on the

grounds that "the neglect found here

includes a greater number of instances

and for that reason alone, even without

regard to the respondent's previous

misconduct, calls for a longer

suspension." 101 I11.2d at 543.

However, as petitioner in his Petition

for Rehearing pointed out, while the

sanctions in Johnson and Levinson

apparently present mathematical

consistency in terms of the period of

supervision, i.e., six months suspension

for each instance of neglect, in neither

case did the court impose upon the

respondent the added burden of his

proving he is qualified to return to

practice at the end of the suspension

-19-

period.

Clearly, in misconstruing Johnson and

Levinson and failing to address or

consider those cases cited in

petitioner's brief in which repeated acts

of neglect were accompanied by "blatant

misstatements" and/or actual

misrepresentation, In re Kink, 92 I11.2d

293, 442 N.E.2d 206 (1982); In re Taylor,

66 I1l1.2d 567, 363 N.E.2d 845 (1977); I

re Ahern, 23 I1l.2d 69, 177 N.E.2d 197

(1961), the Court sought to evade the

plain impact of those decisions which

impose substantially lighter sancticns

then those dictated in the instant case.

Similarly, the Illinois Supreme

Court's decision to rigidly apply a

mathematically determined sanction based

upon its interpretation of In re Johnson,

supra, 444 N.E.2d at 153, and In re

-20-

Levinson, supra, 376 N.E.2d at 998,

ignores the unique mitigating factors

present in the instant case. As the

Hearing Board noted:

"No doubt exists in the minds of the

Panel that during the heart of the

period involved the Respondent was

embroiled in serious, substantial

marital and family problems...

fand}) It is undoubted that the

personal problems of the Respondent

may be part of the reason for his

inaction on the cases" (Appendix C)

Similarly, the Hearing Board stated:

“The Panel implies no criticism of

the Respondent for accepting cases

of such adverse liability or

apparently limited recovery. In

fact, respondent is to be commended

for accepting such difficult cases

for clients who would not ordinarily

have had a day in court." (Appendix

C)

Evidence of petitioner's honesty and

good reputation in the community, his

lack of corrupt or dishonest motives and

his willingness to cooperate with the

-2]-

Commission was not addressed or

considered by the Illinois Supreme Court

in its opinion. While noting that the

petitioner had taken on "a high volume,

personal injury trial practice" involving

many difficult cases “of dubious

liability and small sums of money," the

Illinois Supreme Court failed to take

into account the Hearing Board's finding

that the petitioner's deviation from

required professional standards was

mitigated in part by the high pressure

nature of his practice and the serious

professional problems resulting

therefrom. 101 I11.2d at 537. The Court

further chose to discount the evidence

that petitioner's continuous good faith

efforts to substantially change the

nature of his practice presented a

mitigating factor dictating a lighter

-22-

sanction, regardless of the point in time

when the major change occurred. The

Court's justification for the increased

sanction clearly ignored the compelling

circumstances surrounding the

petitioner's misconduct and rested solely

on evidence of the petitioner's earlier

discipline, the number of instances of

neglect and the “irreparable prejudice to

petitioner's clients - factors previously

weighed and taken into consideration by

the Hearing and Review Boards in their

recommendation to the Illinois Supreme

Court of a two-year suspension.

The unwarranted and harsh sanction

imposed by the Court without

consideration for sanctions imposed in

cases substantially similar to the case

at bar or the mitigating factors

-23-

present in the instant case, thereby

resulted in an abrogation of petitioner's

rights under the equal protection and due

process clauses of the Fourteenth

Amendment.

PETITIONER TIMELY RAISED HIS CLAIM THAT

THE COURT'S HARSH AND UNPREDICTABLE

SANCTION VIOLATED EQUAL PROTECTION.

Petitioner first raised his

constitutional objection to the sanctions

imposed by the Illinois Supreme Court in

his Petition for Rehearing in which he

asserted that the sanction was the

effective equivalent to disbarment and

was constitutionally inconsistent with

sanctions imposed on other attorneys in

Similar cases. The Petitioner concluded

that:

These inconsistencies... raise grave

constitutional issues of deprivation

of due process and equal protection

under the law. (Petition for

Rehearing, pg. 3)

=-24-

Petitioner's objection to the Court's

Sanction in his Petition for Rehearing

was timely in that the court's increased

sanction was both unexpected and

unpredictable in light of the pattern of

precedent set by that Court and the

recommendations of imposed by the Hearing

and Review Boards. Both the Hearing

Board and the Review Board recommended a

two-year suspension on the grounds that

petitioner's conduct did not rise to the

level of dishonesty, misrepresentation,

fraud or deceit necessary for violation

of D.R. 1-102(a) (4). Even upon a finding

by the Illinois Supreme Court that

petitioner's conduct went “beyond mere

neglect," the sanctions previously

imposed in cases involving either neglect

Or misrepresentation have not imposed the

-25-

added burden on the respondent to prove

after a period of suspension that he is

qualified to resume his practice. In re

Johnson, 93 I111.2d 441, 444 N.E.2d 153

(1982); In re Levinson, 71 I1l1.2d 486,

376 N.E.2d 998 (1978).

Petitioner concedes that the general

rule is that a “constitutional question

is urged too late, if put forward for the

first time upon petition for rehearing."

Great Northern Railway Co. v. Sunburst

Oil and Refining Co., 287 U.S. 358, 366

(1932). It is clear, however, that the

instant case falls into the class of

decisions in which this Court will review

a state supreme court's unpredictable

foreclosure of a party's constitutional

right. Specifically, Justice Cardozo in

Great Northern spoke of the exception

into which the petitioner falls:

-26-

The rule, general as it is, does not

extend to cases where the ’

constitutional question, however |

tardily raised, is considered or \

decided (citations omitted), nor

does it apply where the grounds of

the decision supply a new and

unexpected basis for a Claim b the

defeated party of the denial o

Federal right. 287 U.S. at 367.

(emphasis added)

Thus, where "the objections of the

petitioner could not [have been] made in

advance of the event," the United States

Supreme Court will assert jurisdiction

over the matter in order to prevent an

unjustifiable foreclosure of a

constitutional claim arising only upon

the rendition of a decision by a state

supreme court. Great Northern, supra,

287 U.S. at 367; Pruneyard Shopping

Center v. Robins, 447 U.S. 74, 85 n. 9

(1980); Brinkerhoff-Faris Trust & Savings |

Co. v. Hill, 281 U.S. 673, 678 (1930). |

-27-

In the instant case, petitioner was

confronted with an unexpected and

unwarranted sanction which departed not

only from the recommendations of the

Hearing and Review Boards, but from the

precedent set by previous Illinois

Supreme Court decisions. Petitioner

cannot reasonably be bound to anticipate

the unconstitutional departure from

precedent in order to invoke federal

protection in advance. The federal issue

in this case arose from the unanticipated

ruling of the state court, and

petitioner's presentation of this issue

in his Petition for Rehearing “was timely

since it was raised at the first

opportunity." Brinkerhoff-Faris Trust &

Savings Co. v. Hill, 281 U.S. 673, 678

(1930).

-28-

ARGUMENT

Introduction

This Court has held that it will

review a state court order denying an

attorney's right to practice law where

the attorney makes a substantial

allegation that the order violates the

due process or equal protection clause of

the Fourteenth Amendment. Schware v.

Board of Bar Examiners, 353 U.S. 232

(1957); Konigsberg v. State Bar of

California, 353 U.S. 252 (1957); Theard

v. United States, 354 U.S. 278 (1957).

Implicit in this holding is this Court's

recognition that “without doubt, [the

liberty guaranteed by the Fourteenth

Amendment} denotes... the right of an

individual... to engage in any of the

common occupations of life..." Board of

-29-

Regents v. Roth, 408 U.S. 564, 572

(1972), quoting Meyer v. Nebraska, 262

U.S. 390, 399 (1922).

More specifically, upon earning the

privilege to practice law "an attorney's

calling or profession is his property

within the literal sense and meaning of

the Constitution." Ex parte Wall, 107

U.S. 265, 289 (1883). In repeatedly

acknowledging that after an attorney has

earned his license he has gained--in

terms of “liberty"--the right to practice

law, this Court has held that the state's

exercise of its disciplinary powers may

threaten an attorney with a "significant

deprivation of liberty" as well as

subject him to a risk of “grave stigma.”

Santosky v. Kramer, 455 U.S. 745 (1982);

Wisconsin v. Contantineau, 400 U.S. 433

(1971). As Chief Justice Marshall in

-30-

Ex parte Burr, 22 U.S. 529 (1884), stated:

»«ethe profession of an attorney is

of great importance to an

individual, and the prosperity of

his whole life may depend on its

exercise. The right to exercise it

ought not to be lightly or

Capriciously taken from him. 22 U.S.

at 529.

In accord with this Court's

holdings, the Illinois Supreme Court has

held that although the dual purpose of

the disciplinary system is to safeguard

the public and maintain the integrity of

the legal profession, In re Neff, 83

I11.2d 20, 413 N.E.2d 1282 (1980), the

duty of the courts to protect the public

from the impositions and improper

practices of attorneys must not be

exercised in a despotic manner and

without legal discretion. In re Fisher,

15 I111.2d 139, 153 N.E.2d 832 (1958).

-3l-

In Fisher, the Illinois Supreme Court

citing In re Donaghy, 402 I11l. 120, 123,

83 N.E.2d 560, 562 (1949), noted:

The legal calling is a time-honored

profession and the Courts owe a duty

to protect the public from

impositions and improper practices.

This duty has repeatedly been

declared by this court. (citations

omitted) Such duty, and the manner

in which it is exercised, must not

be despotic, but the charges must be

sustained by clear and convincing

proof and the misconduct must be

shown to have been fraudulent and

the result of improper motives, and

the proof must show intent.

(citation omitted) The courts must

not exercise their supervisory

control in an arbitrary manner, but

must show a legal discretion in the

exercise thereof. 153 N.E.2d at 840.

Similarly, the court in Fisher expressed

its sentiment on the subject of a lengthy

suspension stating:

The disbarment of an attorney is the

destruction of his professional

life, his character, and his

livelihood. (citations omitted)

The court should, therefore, disbar

=-32-

in moderation. Likewise, the same

considerations obtain in the

application of a three-year

suspension rule. A removal of an

attorney from practice for a period

of years entails the complete loss

of a clientele with its consequent

uphill road of patient waiting to

again re-establish himself in the

eyes of the public, in the good

graces of the courts and his feliow

lawyers. In the meantime his income

and livelihood have ceased to

exist. 153 N.E.2d at 840-841.

In light of these considerations, a

State may not exclude a person from the

practice of law or any other occupation

in a manner or for reasons that

contravene the due process or equal

protection clauses of the Fourteenth

Amendment. Due process and equal

protection require that the state action

have a “rational connection' with the

attorney's fitness or capacity to

practice law. Schware, supra, 353 U.S.

at 238. Specifically, under the equal

-33-

protection clause a classification must

be reasonable and not arbitrary or

Capricious, and rest upon some ground of

difference having a fair and substantial

relation to the object of legislation

such that all persons similarly

circumstanced are treated alike. McGowan

ve. Maryland, 366 U.S. 420 (1961).

Similarly, due process requires that the

exercise of power resulting in the

deprivation or partial destruction of an

individual's professional life rest on a

"reasonable basis" and bear some

"rational relation” to that individual's

fitness to pursue his profession. Barsky

v. Board of Regents of New York, 347 U.S.

442 (1953). In either context, where the

evidence does not "rationally support"

the grounds for denying the right to

practice law, the state's action

-34-

may be classified as an arbitrary and

discriminatory “denial of due process and

equal protection of the laws."

Konigsberg, supra, 353 U.S. at 262.

In the instant case, the petitioner

contends he has been denied due process

and equal protection of the law based

upon the following:

1) the imposition of a

sanction equivalent to disbarment

which is:

a) inconsistent with the

sanctions imposed on attorneys

Similarly situated, and

b) in complete disregard

of the findings of fact and

recommendations of the Hearing

and Review Boards without clear

and convincing evidence of

dishonesty, fraud, deceit or

misrepresentation in violation

of D.R. 1-102(a) (4), and

2) upon the rigid application

of a mathematically based sanction

without consideration for the

compelling mitigating circumstances

presented by the petitioner.

-35-

The basis of the Illinois Supreme

Court's decision as articulated by that

court, rested on its desire to

“safeguard the public and maintain the

integrity of the legal profession.” 101

I11.2d at 539. However, this objective

is not secured by the arbitrary and

discriminatory sanction imposed on the

petitioner. No rational basis exists

for the difference in punishment and in

fact, such a disparity effectively

inhibits the communication to the public

and the profession the standard of

conduct ciiauaiiiiias of persons licensed to

practice law in Illinois. As a result

of the Court's arbitrary failure to

consider any mitigating circumstances,

this case results in the effective

disbarment of an attorney who has

-36-

changed the nature of his practice to

prevent further instances of neglect and

who was commended by the Hearing Board

for his willingness to represent clients

who would not ordinarily have had a day

in court. (Appendix C). Conversely,

uniformity of sanctions after a

consideration of mitigating factors will

secure the rights of due process and

equal protection under the laws as

guaranteed by the Fourteenth Amendment.

I. THE PETITIONER IS DENIED DUE PROCESS

AND THE EQUAL PROTECTION OF THE LAWS

AS A RESULT OF THE ILLINOIS SUPREME

COURT'S ARBITRARY IMPOSITION OF A

SANCTION INCONSISTENT WITH DISCIPLINE

IMPOSED ON ATTORNEYS CHARGED WTH

SIMILAR MISCONDUCT AND IN DISREGARD

OF THE HEARING AND REVIEW BOARDS'

FINDINGS AND RECOMMENDATIONS WITHOUT

CLEAR AND CONVINCING EVIDENCE OF

DISHONESTY, FRAUD, DECEIT OR

MISREPRESENTATION IN VIOLATION OF

D.R. 1-102(a) (4).

eatadduaneraticrenalk Cacarttem eee

-37-

A. The Illinois Supreme Court's

Sanction Is An Arbitrary And

Discriminatory Deviation From

The Sanctions Imposed Upon Those

Attorneys Charged With Similar

Misconduct.

The deprivation of a lawyers's

license "is a punishment or penalty"

imposed on the lawyer "by way of

adversary proceedings of a quasi-criminal

nature." In re Ruffalo, 390 U.S. 544,

550-551 (1968). Further

characterizations in Konigsberg, supra,

353 U.S. at 252, and Ruffalo, supra, 390

U.S. at 544, concerning the attorney's

interest in his license, and the nature

of the proceedings depriving him of it,

suggest that standards more exacting than

those governing ordinary civil cases must

be applied to disciplinary proceedings.

In particular, this court's decisions in

Ruffalo, supra, and Spevack v. Klein, 385

-38-

U.S. 511, 515 (1967), where the

reqvirements of adequate notice of

charges and the privilege against

oelf-ines iudactien were extended to

disbarment proceedings, appear to

recognize that because of their

Similarity with conventional criminal

sanctions, disciplinary actions against

attorneys entitle the attorney to many of

the constitutional protections extended

to those accused of criminal violations.

One such constitutional protection

currently being recognized is the need

for uniformity tempered by mitigating

factors in sentencing.

Significantly, the Illinois Supreme

Court in its opinion in the instant case

acknowledges that “in order to safeguard

the public and maintain the integrity of

the legal profession... it is important

-39-

that there be uniformity in the sanctions

afforded to different attorneys." 101

I11.2d at 541, citing In re Clayter, 78

I11.2d 276, 283, 399 N.E.2d 1318 (1980).

As the court stated in In re Saladino, 71

I11.2d 263, 375 N.E. 2d 102 (1978):

Although appropriate facts may

always be considered in mitigation,

predictability and fairness require

a degree of consistency in the

selection of sanctions for similar

types of misconduct. That degree of

consistency can only be achieved if

sanctions are based on articulated

Standards of conduct. These

standards must be “derived from the

underlying purposes of our

disciplinary process, which are to

safeguard the public, maintain the

integrity of the profession, and

protect the administration of

justice from reproach. 375 N.E.2d

at 106-107.

Thus, “where facts are strikingly similar

to those in another case, a degree of

uniformity in the discipline sought

should be imposed." In re Clayter,

-40-

Supra, 399 N.E.2d at 1321.

Despite its recognition of the need

for uniformity of sanctions, the Illinois

Supreme Court failed to consider or

address those cases cited in the

petitioner's brief where the Court had

ordered a lesser sanction as the

appropriate discipline on facts

substantially congruent with those

material to this case. In re Kink, 92

T11.2d 293, 442 N.E.2d 206 (1982); In re

Taylor, 66 I11.2a 567, 363 N.E.2d 845

(1977); In re Ahern, 23 I11.2d 69, 177

N.E.2d 197 (1961).

As early as 1961, the court ordered

censure for an attorney charged with five

counts of neglect. In re Ahern, 23

I11.2d 69, 177 N.E.2d 197 (1961). In

that case, each count contained the

charge that Mr. Ahern received payment

-4l-

for services, but either did not render

any services or the services rendered by

him were simply not commensurate with the

amount received. While it was apparent

in the matter involving all five counts

that respond had failed to perform the

services for which he had been retained,

the court held that censure rather than

suspension constituted sufficient

punishment. There, as in the instant

case, respondent had personal problems

involving the illness of a daughter and

his wife. In reaching its decision, the

Court took into consideration these

extenuating circumstances noting that

respondent's personal problems and his

subsequent difficulties adjusting to his

personal life may have explained a good

part of his misconduct. Moreover,

although Mr. Ahern's misconduct clearly

-42-

involved an error in judgment, it was not

shown to have resulted from corrupt

motives.

In 1977, the Illinois Supreme Court

held that a one-year suspension from the

practice of law was the appropriate

sanction for an attorney who showed a

“pattern of consistent neglect." In re

Taylor, 66 I11.2d 567, 363 N.E.2d 845

(1977). Respondent's neglect in that

case was based on a series of agreements

to represent clients, acceptance of fees

or money for costs, neglect in peforming

and completing legal services, and

frequent inaccessibility to a client.

Although it was clear that Mr. Taylor

acted with consistent neglect and that

disciplinary action was warranted, the

Court, nonetheless, concluded that a

three-year suspension would not serve the

-43-

interest of the public and the legal

profession given respondent's lack of

overtly dishonest acts and corrupt

motives.

In a more recent decision involving

facts similar to those at bar, censure

was again held to be the appropriate

sanction. In re Kink, 92 I11.2d 293, 442

N.E.2d 206 (1982). Respondent in Kink

manifested a lack of care in handling the

estates of three separate clients,

several instances of which extended over

a period of years and operated to the

irreparable prejudice of his clients.

The record indicated that the respondent

failed to close the estates, failed to

file certain documents, failed to pay

taxes and misrepresented the status of

the case to clients. Respondent was less

than candid with at least one client, and

-44-

he remained inaccessible despite his

clients’ attempts to contact him.

In reaching its decision, the Court

in Kink took into consideration a number

of extenuating circumstances which, in

its opinion, tended to mitigate or

explain respondent's misconduct. Among

other things, the Court noted that

respondent's conduct was apparently not

prompted by dishonest motives and that he

had been cooperative and candid during

the proceedings, two factors which have

been held to be significant in

determining the appropriate punishment.

In re Clayter, 78 I11.2d 276, 399 N.E.2d

1318 (1980); In re Damisch, 38 I1l.2d

195, 230 N.E.2d 254 (1967).

Consideration was also given to the

testimony of witnesses as to respondent's

excellent reputation in the community.

-45-

The Court further observed that although

the respondent had been negligent and

dilatory in representing his clients’

interests, he had in fact--similar to the

instant case--rendered some services on

their behalf. The Court, finding the

circumstances analogous to those in

Ahern, concluded once again that neither

the best interests of the public nor

those of the legal profession would be

served by suspending the respondent.

The facts in In re Chapman, 95 I11l1.2d

484, 448 N.E.2d 852 (1983), which the

Illinois Supreme Court chose to

distinguish solely on the basis of that

respondent's alcoholism, are analogous to

the facts material to the instant case.

In Chapman, the Court held that the

neglect of legal matters coupled with

misrepresentation of the status of the

-46-

case to the client, warranted a two-year

probationary suspension, notwithstandin”

respondent's history of previous

discipline and his failure to cooperate

in the disciplinary proceeding. It is

worthwhile noting that the misconduct in

Chapman commenced less than a year from

the conclusion of an earlier disciplinary

proceeding. In fact, respondent had

already been disciplined for professional

misconduct on two prior occasions. In

one instance, he was reprimanded. In

1978, he was suspended for three months

for neglecting clients' affairs, the same

misconduct with which he was subsequently

charged in 1983.

Petitioner's misconduct in the

instant case differs little from the

cases cited above in which the Illinois

Supreme Court found significantly lighter

-47-

sanctions were warranted. All involved a

pattern of consistent neglect which

amounted to the non-performance of legal

services owed to a client coupled with

"misstatements" and/or actual

misrepresentations, and in Ahern and

Chapman, a history of previous

disciplinary sanctions. Clearly, the

Illinois Supreme Court's decision to

ignore the impact of these cases results

in a gross deviation from the established

sanctions for petitioner's misconduct to

the prejudice of the petitioner's

constitutional rights and the legal

profession as a whole.

B. The Illinois Supreme Court

Ignored The Fine ngs And

Recommendations Of The Hearing

and Review Boards Without Clear

and Convincing Evidence of

Dishonesty, Fraud, Deceit Or

Misrepresentation In Violation

of D.R. 1-102(a) (4).

-48-

Paralleling the recognized need for

uniformity in the imposition of

disciplinary sanctions, the findings of

the Hearing and Review Boards are given

"great deference" by the Illinois Supreme

Court in its reviewing capacity, as these

entities are best situated to "making

factual findings in contested matters and

developing uniformity ta our disciplinary

system." In re Cohen, 83 I11.2d 521, 416

N.E.2d 256 (1981). As the Court in Cohen

noted:

While this court has the ultimate

responsibility to impose and enforce

attorney discipline... the findings

and recommendations of the Inquiry,

Hearing and Review Boards are

entitled to and receive our serious

consideration. These boards, with

the exception of the Review Board,

see and hear the witnesses and play

important roles in screening and

hearing cases, making factual

findings in contested matters and

developing uniformity in our

disciplinary system. 416 N.E.2d at

-49-

258.

Similarly, the Court in In re Kink,

Supra, 442 N.E.2d at 209, quoting In re

Hopper, 85 I1l1.2d 318, 423 N.E.2d 900

(1981), noted:

Where the question is credibility of

witnesses, resolution of conflicting

testimony, or other such fact-

finding judgments, the hearing panel

should be afforded a good deal of

deference.

Moreover, “where the findings of

those boards are based on uncontradicted

and clear evidence they will be

adopted." In re Wigoda, 77 I1l.2d 155,

395 N.E.2d 571 (1979).

In its opinion in the instant case,

the Illinois Supreme Court expressly

acknowledged that "a finding by the

Hearing Board of the Disciplinary

Commission is entitled to the same

-50-

weight as that of any other factfinder."

101 I11.2d at 539 citing In re Kink, 92

I11.2d 293, 301, 442 N.E.2d 206 (1982),

and In re Feldman, 89 I11.2d 7, 10, 431

N.E.2d 388 (1982). The Court further

conceded that "we give considerable

deference to findings of fact by the

Hearing Board." 101 I11.2d at 539.

Nevertheless, the Court chose to

ignore the findings of the Hearing and

Review Boards--without any further

findings of fact beyond those found by

the Board--on the grounds that it was

“not required to accept [the Board's

findings] when the Board's conclusion is

not established by clear and convincing

evidence.” 101 I11.2d at 540. Conceding

that "although the Board found that there

was no misrepresentation here," the Court

concluded that petitioner's conduct was

-5l1-

in the ambiguous realm of “beyond mere

neglect" without rising to the level of

dishonesty, misrepresentation, fraud or

deceit in violation of D.R. 1-102(a) (4).

This Court has determined that there

is a denial of due process and equal

protection where an individual is denied

the right to practice law where no

evidence in the record rationally

supports a finding of doubt about the

attorney's fitness or capacity to

practice law. Konigsberg, supra, 353

U.S. at 252. In the instant case,

petitioner is faced with a sanction

equivalent to disbarment. While the

petitioner in this case does not concede

that the original two-year suspension was

correct, he maintains that in comparison

with the discipline meted out by the

Illinois Supreme Court, the sanctions of

-52-

the Hearing and Review Boards are more

consistent with the degree of his

misconduct. Clearly, disbarment is an

extreme measure appropriate only in those

limited circumstances where intentional

fraud, deceit, misrepresentation or

dishonest motive is shown by clear and

convincing evidence. In re March, 71

I11.2d 382, 376 N.E.2d 213 (1978).

Neither the Hearing and Review Boards nor

the Illinois Supreme Court found evidence

of such egregious conduct as to warrant

the imposition of such a sanction. In

this case, the Court's interest in

protecting the public and the legal

profession from improper conduct of the

petitioner will not be served by the

suspension for three years and “until

further order." Not only does the

-53-

disparity in sanctions prevent the

uniform application of the law, but the

Court's failure to give credence to the

findings of the Hearing Board effectively

inhibits the uniform development of

sanctions by that body best able to judge

the credibility of witnesses and evidence.

a3.

THE ILLINOIS SUPREME COURT'S MECHANICAL

APPLICATION OF A MATHEMATICALLY

DETERMINED SANCTION IGNORED THE

COMPELLING MITIGATING CIRCUMSTANCES

SURROUNDING THE PETITIONER'S MISCONDUCT.

It is well-settled under Illinois law

that while uniformity of sanctions is a

fundamental consideration, In re Clayter,

78 I11.2d 276, 283, 399 N.E.2d 1318

(1980); In re Saladino, 71 I11.2d 263,

375 N.E.2d 102 (1978), the determination

of appropriate discipline must also

involve and often times turn upon, the

-54-

unique factors of mitigation present in

each case. In re McLennon, 93 I11.2d

215, 443 N.E.2d 553 (1982); In re Hopper,

85 Ill.2d 318, 423 N.E.2d 900 (1981).

The rule as established by the Illinois

Supreme Court parallels that enunciated

by this Court for consideration in

Criminal sentencing. As this Court has

stated: "[T]he sentencing judge is

authorized, if not required, to consider

all of the mitigating and aggravating

circumstances involved in the crime."

Williams v. Oklahoma, 358 U.S. 576, 585

(1959). Accord, United States v.

Jonnson, 507 F.2d 826, 830 (7th Cir.

1974), cert. denied, 421 U.S. 949

(1975). Underlying this decision is the

rationale that the mechanical application

of a sentence violates the equal

protection and due process clauses of the

-55-

Fourteenth Amendment in that it results

in equal sentences for those defendants

who as a result of individual mitigating

circumstances may not be similarly

situated.

In the instant case, the Illinois

Supreme Court clearly ignored all

evidence of mitigating circumstances

found by the Hearing and Review Boards,

and under the guise of uniformity, sought

to impose a rigid mechanical sanction

derived from its erroneous interpretation

of those sanctions imposed in In re

Johnson, 93 I11.2d 441, 444 N.E.2d 153

(1982) and In re Levinson, 71 I11l1.2d 486,

376 N.E.2d 998 (1978). The Court

maintained that its decision in the

instant case was consistent with the

discipline imposed in Johnson and

Levinson cn the grounds that "the neglect

-56-

found here includes a greater number of

instances and for that reason alone, even

without regard to the respondent's

previous misconduct, calls for a longer

suspension." 101 I11.2d at 543.

Notwithstanding the Illinois Supreme

Court's contention that their decision

"is consistent" with Johnson and

Levinson, the Court's imposition of a

three-year suspension and “until further

order" sanction--a sanction effectively

tantamount to disbarment--is, in fact, a

gross deviation from the discipline

imposed in those two cases and in

Previous decisions. Neither Johnson nor

Levinson imply that each instance of

neglect should be punished with six

months suspension. Clearly, neither

Johnson nor Levinson advise “three years

suspension until further order" as the

-57-

appropriate sanction for misconduct

similar to that in the instant case.

The Court, in the imposition of this

harsh and unwarranted sanction solely on

the basis of “the number of instances of

neglect," clearly sought to avoid the

Plain impact of those decisions in

similar cases where significantly lighter

sanctions were imposed despite the

evidence of a “consistent pattern of

neglect" and misrepresentations to

Clients. In re Kink, supra, 92 I1l.2d

2932, 442 N.E.2d 206 (1982); In re Taylor,

supra, 66 I1l1.2d 567, 363 N.E.2d 845

(1977); In re Ahern, supra, 23 Ill.2d 69,

177 N.E.2d 197 (1961). The effective

disbarment imposed in this case not only

grossly deviated from sanctions imposed

in similar cases--to the prejudice of the

petitioner's constitutional rights--but

-58-

Clearly failed to protect the public or

the integrity of the judicial process or

advance the standards of ethics of the

legal profession.

Moreover, the Court's failure to

consider the mitigating circumstances

surrounding the petitioner's misconduct

in the instant case violated the

petitioner's rights of due process and

equal protection under the laws. The

petitioner offered the Illinois Supreme

Court two reasons for the non-performance

of his professional duties, vis., a high

volume intensely demanding practice and

serious personal problems. The record

demonstrates the Hearing Board's

recognition that “the personal problems

of the Respondent may be part of the

reason for his inaction on the cases" and

that “Respondent is to be commended for

-59-

accepting such difficult cases for

clients who would not ordinarily have had

a day in court." (Appendix C) The

record further illustrates that the

petitioner has a reputation for honesty

in the legal community and was

cooperative and candid with the

Commission.

The circumstances surrounding the

petitioner's conduct were sufficiently

compelling to dictate a lesser sanction

than that imposed by the Court. In

addition, the Court's application of a

mathematically based sanction without

consideration of the mitigating

circumstances present in the instant case

resulted in a complete abrogation of the

petitioner's rights of due process and

egual protection as guaranteed by the

Fourteenth Amendment.

-60-

CONCLUSION

For the reasons set out above,

petitioner respectfully submits that this

Petition for Writ of Certiorari should be

granted and that the decision of the

Illinois Supreme Court should be reversed.

Respectfully submitted,

WILLIAM J. HARTE

WILLIAM J. HARTE

WILLIAM J. HARTE, LTD.

111 West Washington Street

Suite 2025

Chicago, Illinois 60602

(312) 726-5015