author: MR. JUSTICE RYAN

text:
    (No. 50594.

      In re W. JASON MITAN, Attorney, Respondent.

      Opinion filed Jan. 12, 1979.

    Rehearing denied March 30, 1979.

      WARD and CLARK, JJ., took no part.
    John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.

      Julius Lucius Echeles and William J. Harte, of Chicago (Joseph A. Rosin, of counsel), for respondent.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this attorney discipline matter we must decide two issues. Is Rule 8.1 of the Attorney Registration and Disciplinary Commission (Ill. Rev. Stat. 1977, ch. 110A, following par. 770), which states that a hearing shall commence on a complaint within 90 days of service, mandatory or directory? Second, should a licensed attorney who made several false statements on his application for admission to the bar of this State be disciplined and, if so, to what extent?

On February 4, 1976, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint, which had been voted by the Inquiry Board, alleging that respondent had deliberately made false statements on his sworn questionnaire and his sworn supplemental questionnaire filed with the Committee on Character and Fitness. The complaint was served on respondent on February 6, 1976, and a date for appearance before the hearing panel was set for May 19, 1976, a date 103 days after service. On February 25, 1976, respondent requested a continuance, which was denied although additional time to answer was given, and then on March 10, 1976, and again on April 9, 1976, filed answers to the complaint. On May 16, 1976, two days before the date set for the hearing, respondent moved to dismiss the complaint on the ground that the hearing had not commenced within 90 days of service as specified in Rule 8.1 of the Attorney Registration and Disciplinary Commission. The motion to dismiss was granted on May 18, 1976, without prejudice to the Administrator to file a new complaint. The Administrator filed an identical complaint on May 20, 1976; this second complaint was not voted by the Inquiry Board as specified in our Rule 753(a) (58 Ill. 2d R. 753(a)). Service of this second complaint was had on the respondent. He was also served with a “Request to Admit Facts and Genuineness of Documents” (Request) pursuant to our Rule 216 (58 Ill. 2d R. 216). Technical objections to service made by the respondent delayed the proceedings until January 1977. On several occasions in January 1977 respondent filed motions objecting to the form and content of certain paragraphs in the Request; he made specific denials to only three paragraphs. The hearing panel overruled these objections, and on January 25, 1977, when no admission or denial was filed by the respondent, deemed the allegations admitted. Though respondent was not personally present at the hearing, his counsel did not stand exclusively on procedural points but objected vigorously to admission of each item of the Administrator’s evidence and in closing argument dealt extensively with the alleged misconduct itself.

As to the substantive matters of the complaint, the Administrator presented substantial evidence supporting his allegations that the respondent made numerous false statements and deliberately failed to disclose certain information in the sworn questionnaire and statement filed with his July 14, 1972, application for admission to the Illinois bar. These false statements and omissions were reiterated in an April 9, 1974, supplemental questionnaire in which the respondent indicated that there were “no changes” in most areas of the questionnaire; numerous questions were marked “same.”

The hearing panel and the Review Board found that the respondent had made nine specific and material misrepresentations. Respondent did not disclose at least four of his previous addresses and falsely stated his birthday to be May 18, 1943, when, in fact, his birthday is May 18, 1938. He did not disclose that his name at birth was Walter James Mitan and that it was changed by court order on May 1, 1972, to W. Jason Mitan. In response to a direct question he gave no information regarding a previous marriage and he did not disclose details of a subsequent divorce. Respondent answered in the negative questions about attendance at law schools other than the one from which he received his degree and application for admission to other State bars; in fact, he attended John Marshall Law School as an “auditor” and applied for admission to the bar of Pennsylvania. Respondent did not disclose at least five previous employers and occupations. Respondent also denied involvement in any prior civil or criminal proceedings when, in fact, he had been involved in several civil suits, had been arrested three times, and had pleaded guilty and had been convicted of a felony confidence game.

The hearing panel and the Review Board recommended that the respondent be disbarred.

Before reaching the substantive aspects of the Administrator’s complaint, respondent urges that we hold that two technical errors in the proceedings below stripped the hearing panel 'of its authority to recommend discipline: a hearing was not held on the first complaint within 90 days of service as specified in Rule 8.1 of the Commission; and, the second complaint filed by the Administrator was not voted by the Inquiry Board, as required by this court’s Rule 753(a).

Rule 8.1 is not a rule of this court but is a procedural rule of the Commission which it is authorized to promulgate by our Rule 751(a), which provides that the Commission shall have the duty “(a) To make rules for disciplinary proceedings not inconsistent with the rules of this court” (58 Ill. 2d R. 751(a)). This court has the inherent power to regulate the admission of attorneys to the practice of law and to discipline attorneys who have been admitted to practice before it. The disciplining of attorneys is in the nature of an original proceeding in which the Attorney Registration and Disciplinary Commission and its various officers, as well as the Inquiry Board, the hearing panel and the Review Board, serve only as agents of this court in administering the disciplinary functions that have been delegated to them. (In re McCallum (1945), 391 Ill. 400, 419; In re Reynolds (1965), 32 Ill. 2d 331, 336; In re Czachorski (1969), 41 Ill. 2d 549.) The findings and recommendations of the hearing panel and the Review Board, although entitled to virtually the same weight as the findings of any trier of fact, are nonetheless not binding on this court but are advisory only (In re Hallett (1974), 58 Ill. 2d 239; In re McCallum). This court has held that because of the nature of the proceedings before those to whom we have delegated the authority to act, we will not consider technical objections as to the practice and procedures before them, nor can such technical objections bind us or limit our authority to act. In re Czachorski; In re Yablunky (1950), 407 Ill. 111.

Rule 8.1 of the Attorney Registration and Disciplinary Commission provides:

“Except in extraordinary circumstances, the hearing on the complaint shall commence before the Hearing Panel no later than 90 days after service of the complaint upon the respondent.” (Ill. Rev. Stat. 1977, ch. 110A, following par. 770.)

The respondent asks us to hold that this rule sets forth a mandatory statute of limitations, a limitation which would effectively bar this court from disciplining an attorney merely because of an inadvertent administrative error committed by the Administrator’s office. This we will not do. Our Rule 753(c) requires only that the Hearing Board shall set a date for hearing on a complaint not earlier than 21 days after the filing of such complaint and that a copy of the same and a notice of the date for hearing must be served on the respondent attorney not less than 14 days prior to the date set for hearing. Our rule states no limitation on the length of time between the filing of the complaint and the hearing. Rule 8.1 of the Commission must be viewed not as a limitation on the authority or jurisdiction of this court, but as a procedural rule of the Commission directing the Administrator to conduct orderly and timely proceedings with due regard for the rights of the attorney under investigation. The rule promotes prompt action.

The hearing panel properly exercised its discretion in dismissing the complaint without prejudice to the Administrator to file a new complaint. The time limitation is not mandatory, and it cannot be construed, as respondent urges, to be a means of implementing a right to a speedy trial similar to the 120-day provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103—5). The failure to comply with the Commission’s Rule 8.1 does not deprive this court or its agents of the right or the power to further consider the charges against the respondent.

Respondent’s second technical objection to the jurisdiction of this court concerns the Administrator’s failure to submit his second complaint to a vote of the Inquiry Board as specified in our Rules 753(a) and (b). The Administrator filed the second complaint, identical to the first, two days after dismissal of the first complaint without prejudice. The second complaint filed by the Administrator contained the same charges and involved the same conduct of the respondent which the Inquiry Board had originally considered sufficient to cause a complaint to be filed. The order of dismissal simply preserved whatever procedural benefits Rule 8.1 accorded to the respondent by requiring that the hearing date be set within 90 days following the service of the complaint. The order of dismissal was without prejudice to the Administrator to file a new complaint. The filing of a new complaint containing the same charges just two days after the dismissal of the original complaint does not violate our Rule 753(b), which requires that “[a] complaint voted by the Inquiry Board shall be prepared by the Administrator and filed with the appropriate Hearing Board.” This second complaint was one which had been voted by the Inquiry Board. The purpose of our Rules 753(a) and (b) is to prevent the Administrator from acting solely on his own in an arbitrary or dictatorial manner. The attorney-respondent is given the protection of having to answer charges only when they have been made by the Inquiry Board after it has considered the facts upon which they are based independently of prosecutorial interests of the Administrator. The conduct of the Administrator in this case has not violated or deprived the respondent of this protection.

A pattern of falsehood and deception pervades the respondent’s 1972 and 1974 statements and questionnaires submitted to the Committee on Character and Fitness. Viewed alone, each individual falsehood or omission may appear of minor consequence; together, however, the responses present evidence of a calculated effort by the respondent to frustrate any meaningful examination and investigation of the applicant’s fitness to practice law. Though some of respondent’s explanations seem at least plausible (secretarial typing error; merely audited law school courses without credit), others strain credulity (psychologically blocked out unpleasant memories of unpleasant marriage and divorce; arrests not reportable if not followed by conviction). These attempts at rationalizing respondent’s conduct do not disguise the obvious falsehoods. But for the felony conviction, respondent would probably have been admitted to practice had he originally told the Committee everything he tells us now; even the conviction itself would not necessarily and automatically preclude admission. (People ex rel. Deneen v. Coleman (1904), 210 Ill. 79, 80-81.) Even though we might accept respondent’s explanation that mere inadvertence caused all of these falsehoods and omissions, we must, nonetheless, adhere to our recent holding that a bar applicant has a duty to accurately state matters contained in an application for admission. (In re Martin-Trigona (1973), 55 Ill. 2d 301.) The Illinois Code of Professional Responsibility, Disciplinary Rule 1—101 (A) (1970)—violation of which may subject an attorney to discipline (In re Hallett (1974), 58 Ill. 2d 239)—and several early cases recommend sanctions for concealing prior convictions and making materially false statements in the bar application. (People ex rel. Healy v. Propper (1906), 220 Ill. 455; People ex rel. Deneen v. Gilmore (1905), 214 Ill. 569; People ex rel. Deneen v. Hahn (1902), 197 Ill. 137 (all cases recommend disbarment).) These cases hold that the concealment of a prior conviction constitutes a fraud upon this court and warrants discipline. Recent cases from other jurisdictions also recommend disbarment for such conduct. Florida Board of Bar Examiners v. Lerner (Fla. 1971), 250 So. 2d 852; In re Howe (N.D. 1977), 257 N.W.2d420; In re Elliott (1977), 268 S.C. 522, 235 S.E.2d 111.

The concealment of the respondent’s prior conviction, as noted in the cases cited above, constituted a fraud on this court which, as the earlier cases from this State and the cases cited from other jurisdictions held, is conduct of such a serious nature as to warrant disbarment. When we consider also the respondent’s false and deceptive answers to other questions, we conclude that the discipline recommended by the hearing panel and the Review Board is warranted. It is therefore the order of this court that the respondent be disbarred.

Respondent disbarred.

WARD and CLARK, JJ., took no part in the consideration or decision of this case.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 50629.

      In re JOHN JOSEPH TURNER, Attorney, Respondent.

      Opinion filed January 12, 1979.

    John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Thomas A. Hett, of Shea & Hett, Ltd., of Berwyn (Gerald W. Shea and Ira A. Rogal, of counsel), for respondent.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a two-count complaint against attorney John Joseph Turner, charging him with conduct which tends to bring the legal profession into disrepute. Turner was admitted to the bar in 1955. The first count alleged that Turner commingled and converted funds he received on behalf of three clients for the settlement of their personal injury claims. The second count charged him with false testimony before a panel of the Inquiry Board in connection with an investigation of his actions. After a hearing, the hearing panel recommended that Turner be suspended from the practice of law for 5 years. The Review Board agreed that Turner’s conduct warranted discipline, but reduced the suspension period to 3 years.

Turner had been retained by Margaret Meegan, Veronica Meegan and Irene Dion to represent them in claims against Arthur Svane for injuries they suffered in an automobile collision. Turner received a settlement offer of $850 from Svane’s insurer; $150 to Margaret Meegan, $100 to Veronica Meegan, and $600 to Irene Dion. On November 29, 1973, Turner sent releases to the three. They signed the releases and returned them to Turner. On December 26, 1973, the insurer issued a check for $850, payable to the three women and to Turner and an associate. Turner signed the names of the three clients on the back of the check without their authorization and deposited it in his personal account at a bank in Chicago on January 21, 1974. The handwriting of the signatures is somewhat different for each name, a different slant and formation of the lettering. Several days later, the account was almost $500 overdrawn, and on January 30, 1974, the account was overdrawn more than $2,000. Turner did not contact any of the clients, nor did he send them the proceeds of the settlement. Margaret Meegan later testified that from December 1973 to February 1976, she telephoned Turner’s office between 150 and 200 times, but was never able to speak with him. In February 1976, Margaret Meegan filed a complaint with the Attorney Registration and Disciplinary Commission. On February 16, 1976, Turner sent a letter to the Commission in response to its inquiry. In the letter he stated that the lawsuit had been dismissed before settlement was completed and asserted that he had paid the clients their agreed-upon amounts. In reality, the case had not been dismissed prior to settlement and Turner did not pay the three clients until August 3, 1976, one day before his scheduled hearing before the inquiry panel.

At the hearing before the inquiry panel on August 4, 1976, Turner testified that the case had not been settled but had been dismissed due to his neglect. He did not tell the panel that he had received a check and deposited it in his own account, but did remember the settlement agreement when he was shown the check.

On June 1, 1977, a hearing was held before the hearing panel. In his testimony, Turner admitted that he had no written authority to sign the clients’ names to the check. He admitted signing the names, however, admitted depositing the money in his personal account, and admitted it was subsequently overdrawn. He also admitted that the representations he made to the inquiry panel in his letter and testimony had been mistaken; he stated that at the time, he had honestly believed them to be true. Although he had notified the Board that he had paid the clients, he only intended to send a check immediately. He specifically stated that he had no present recollection of the circumstances under which he had endorsed the check and deposited it in his personal account. The first time he had any knowledge of the settlement was when he was shown the check at the hearing before the Inquiry Board. He denied Margaret Meegan’s testimony that she had never been able to reach him. According to Turner, he had spoken with her several times and had mistakenly told her that he had "goofed ” up the case and that he would check the status and get back to her. He also stated that he was unable to find the relevant files.

The legal secretary in charge of the law office where Turner was employed testified that she was not familiar with the names of any of the three clients involved in this matter, nor was she aware of any phone calls by Margaret Meegan. She also testified that she had a high opinion of Turner’s honesty and integrity. Robert Dion, a former client, personal friend of Turner’s, and son of Irene Dion, testified that he had the highest regard for Turner. Professor Lawrence F. Daly, one of Turner’s law professors, was also associated with the firm. He testified that Turner’s reputation in the legal profession was very good. Victor Cacciatore, an attorney in partnership with Turner, testified that Turner’s reputation for honesty and integrity in the legal community was the very highest.

The hearing panel made the finding that Turner forged the signatures of the three clients to the check, commingled their funds by depositing it in his personal account and failed to reply to Margaret Meegan’s calls. It further noted that the account was in overdraft status for several months after the deposit and held that Turner had converted the money. As to count II, the panel held that Turner’s testimony before the Inquiry Board had been false and that his conduct was deceitful. It concluded that Turner’s conduct as to both counts was unprofessional, unethical and tended to bring the legal profession into disrepute. The hearing panel recommended that he be suspended from the practice of law for 5 years.

The Review Board, after consideration of the record, concurred with the finding and conclusion of the Hearing Board that Turner’s conduct was improper. It reduced the recommended period of suspension to 3 years on the grounds that it would be more consistent with the facts of the case.

The only real issue presented to this court is whether the facts justify a 3-year suspension from the practice of law.

The respondent basically admits the acts he is charged with, but argues that he does not remember the particular circumstances surrounding the check deposit. He contends that he had neither the intent to commingle and convert the funds, nor the intent to deceive the inquiry panel when he gave his mistaken testimony. Although he concedes that his conduct was improper, he appears to argue that his misconduct was not due to bad motives, but rather through mistakes and bad judgment. He argues that a 3-year suspension is too harsh in view of his previous good record. We note that Turner was licensed to practice in January 1955 and that he has not been previously charged with misconduct. He has made restitution to the parties in this case. Several witnesses testified to his good reputation for honesty and integrity. On the other hand, we believe that his entire course of action indicates a callous disregard for his clients’ interests and his professional responsibilities.

Three cases are helpful in establishing the appropriate discipline. In In re Stillo (1977), 68 Ill. 2d 49, an attorney received a check for settlement of his client’s claim, signed the client’s name to it and deposited it in his own bank account. Subsequent to settlement, he continued to tell the client that the case was still pending. In addressing the issue of commingling and conversion, this court stated:

“For an attorney to settle a personal injury case and direct the cashing of settlement checks without authorization by his client is itself an impropriety requiring discipline. (In re Agin [1970], 45 Ill. 2d 126, 131.) When a lawyer, further, converts a client’s funds to his own personal use he commits an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney’s oath, calling for the attorney’s disbarment. (In re Royal [1963], 29 Ill. 2d 458, 464; In re Ahern [1962], 26 Ill. 2d 104, 110.) ‘Other offenses might be excused, but conversion to his own use of the property of his client is an offense that cannot in any degree be countenanced.’ (People ex rel. Black v. Smith [1919], 290 Ill. 241, 251.)” (68 Ill. 2d 49, 54.)

In Stillo the court explicitly stated that the misconduct of the attorney was aggravated by his subsequent dishonesty when appearing before the Hearing Board. Stillo was disbarred.

In re Fumo (1961), 22 Ill. 2d 429, involved a similar commingling and conversion of funds. In that case the respondent was given checks for payment of taxes. The lawyer converted the money from an escrow account to his own personal use. As in the case before us, the attorney depleted his personal bank account, into which the money had been placed. Two thousand dollars were converted. Fumo was suspended for 2 years. However, one crucial distinction is clear between In re Fumo and the case at hand. In Fumo the court explicitly stated that the candor of respondent counsel in that action, considered with other factors, militated against disbarment. In the case we must decide today, the respondent displayed a shocking lack of candor and gave false answers to the Inquiry Board, both by letter and by testimony.

The circumstances of In re Di Bella (1974), 58 Ill. 2d 5, are also similar to those in the instant case. Di Bella obtained a settlement offer from an insurance company for $22,000. He signed the release and the subsequent draft with his client’s name and converted the entire fund. When the conversion was discovered years later he paid his client the original $22,000 minus his one-fourth contingent fee. Di Bella received a 3-year suspension, the period recommended by the hearing panel and the board of managers of the Chicago Bar Association.

We view the respondent’s conduct as less aggravated than that of the respondent in Stillo and conclude that the recommendation of the Review Board should be adopted. We therefore suspend the respondent from the practice of law for 3 years.

Respondent suspended.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50871.

      In re WILLIAM MAULDIN SMITH, Attorney, Respondent.

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      WARD, J., took no part.
    John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Frederick F. Cohn and Sidney S. Altman, of Chicago, for respondent.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a disciplinary proceeding against the respondent attorney, William Mauldin Smith, pursuant to Supreme Court Rules 751 to 770 (Ill. Rev. Stat. 1977, ch. 110A, pars. 751 to 770) in which both the hearing panel and the Review Board of the Attorney Registration and Disciplinary Commission have recommended that respondent be disbarred because of his conversion of clients’ funds. The case is before us on the objections of respondent to the report and recommendations of the Review Board, since “the ultimate responsibility for determining and imposing discipline rests with this court.” In re Wyatt (1972), 53 Ill. 2d 44, 45.

On February 2, 1977, the Administrator of the Commission filed a three-count complaint against respondent charging him with three separate instances of conversion. Count I concerned respondent’s representation of Bennie Smith, a client who retained respondent in June 1972 to represent him in a civil action brought against the city of Chicago and two police officers. A 1974 jury trial of that action resulted in an $8,000 judgment for Bennie Smith. He testified that when advised that the city had two years in which to pay the judgment, he told respondent that he would wait the two years since he would receive interest on the judgment for that period.

Thereafter, however, respondent signed the name “Bennie E. Smith” to an assignment of judgment and sold the $8,000 judgment to a private party for $7,490. The check received in payment was endorsed by respondent “Bennie Smith” and deposited in respondent’s account at the Gateway National Bank of Chicago. Respondent subsequently used the funds for his own purposes. Bennie Smith testified that he did not authorize the assignment of the judgment at a discount, nor was he aware that respondent had done so until almost two years later when he called respondent concerning payment by the city. So far as the record indicates or we have been informed, no part of the judgment proceeds have been paid to Bennie Smith.

Count II concerns respondent’s representation of Charles Miller in a 1974 action against his employer for personal injuries received in the course of his employment. After an Industrial Commission hearing, Miller was awarded $750. A check for that amount, made payable to “Charles Miller,” was sent by the insurance company to respondent, who endorsed the name “Charles Miller” on the check and deposited it in respondent’s account at the Gateway Bank. Again, the proceeds were converted by respondent to his own use. Miller testified that he repeatedly called respondent, who continually denied receiving the money and told Miller he would call him when payment was received. Respondent never accounted for the $750, and the client has received nothing.

Count III of the Administrator’s complaint concerns respondent’s dealings with Floyd Johnson, who had retained respondent to represent him in a claim arising out of an automobile accident. Respondent negotiated a settlement, without Johnson’s authorization or consent, and received a check, dated November 14, 1974, payable to “W. Mauldin Smith & Associates, Ltd. and Floyd Johnson” in the amount of $450. Respondent endorsed Johnson’s name on the check, deposited it in respondent’s account at the Gateway Bank and used it, too, for his own purposes. Although Johnson testified regarding repeated calls to respondent concerning the case, the client was not told until 1976 that the case had been settled. When he did learn of the settlement and asked for the money, respondent replied that “somebody had cashed the check.” As with the other two clients, Johnson has received no part of the $450.

Respondent’s defense was based upon his testimony before the Hearing Board that each of the three clients had signed a power-of-attorney form which authorized respondent to sign the client’s name to legal documents, drafts, etc., and that each client had agreed to loan respondent the money received on the judment or settlement of his claim. In support of this contention, respondent produced power-of-attomey forms signed by Bennie Smith and Floyd Johnson. Smith, Miller and Johnson each testified before the Hearing Board that he had never agreed to loan respondent any money. Respondent failed to produce any documentary evidence to support his “loan” theory, he did not describe the amounts and terms of the loans, and he admitted that he did not give a note or other evidence of indebtedness to any of the clients.

As this court stated in a recent disciplinary action, “[t]he findings made in a disciplinary proceeding are entitled to the same weight as the findings of any trier of fact in our judicial system, and the credibility of witnesses is to be determined by the commissioners who hear and observe the witnesses.” (In re Smith (1976), 63 Ill. 2d 250, 255.) The Hearing Board, the members of which heard the witnesses and observed their demeanor, found respondent’s loan testimony to be “incapable of belief.” We agree. The only evidence supporting this theory that was introduced at the hearing was the uncorroborated testimony of respondent. In contrast to this was the testimony of Smith, Miller and Johnson, each of whom stated that there was no discussion of a loan nor was any loan agreement, written or oral, entered into. Regardless of whether, as respondent argues, the executed powers of attorney gave him the authority to settle claims on behalf of his clients and endorse and negotiate the checks received, he obviously had no right to convert to his own use the entire proceeds of the checks.

Respondent has urged us to remand this cause for a new hearing, contending that he was not given adequate time to prepare his case and that the Hearing Board erred in denying his requested continuances. The Hearing Board changed the original hearing date from April 27 to May 9 in response to respondent’s request for postponement, and we cannot say the Board abused its discretion in denying further continuances where the complaint was served on him on February 10, and the hearing held on May 9. It is desirable and in the public interest that attorney disciplinary proceedings move expeditiously, consistent, of course, with due process requirements.

Respondent suggests that due process may require a bifurcated hearing procedure with separate hearings on “guilt” and “sanctions” instead of the combined hearing system contemplated by our rules and used here. As we understand this argument, the hearing panel would first hear the evidence of misconduct and then recess or adjourn to determine whether the charges had been proved. In the event the charges were found to have been proved, the same panel would then reconvene for the purpose of hearing evidence in mitigation and determining the specific discipline to be recommended. Respondent cites no authority which holds that procedure either necessary or desirable in a professional disciplinary proceeding, and we believe it is not.

One further argument requires discussion. Respondent was represented before the Hearing Board by what apparently was the attorney of his choice. That individual also represented respondent before the Review Board and filed a brief in this court. Oral argument was not requested and the cause was set on the November term calendar for November 15. On November 15 motions for substitution of counsel and oral argument were filed by respondent. The motions were denied on the 16th as to oral argument and allowed as to substitution of counsel, and additional briefing by substituted counsel was permitted. That brief vigorously attacks the quality of representation afforded respondent by his original counsel. The argument that the representation was so inadequate as to amount to none at all is in part bottomed upon a lack of knowledge of the procedural rules governing disciplinary hearings, including the fact that respondent could be called as an adverse witness. Respondent’s attorney had filed an answer to the complaint in which it was alleged that the charged conversions of funds were actually loans to respondent by his clients. No subsequent pleadings were filed by the Administrator, and counsel for respondent was apparently unaware that Commission Rule 5.4 provided: “No reply need be filed by the Administrator. Any new matter alleged in the respondent’s answer shall be deemed denied.” (Rules of the Attorney Registration and Disciplinary Commission, art. V, R. 5.4, Ill. Rev. Stat. 1975, ch. 110A, following par. 770.) New counsel now argues that, having believed the affirmative loan defense was admitted, original counsel was unprepared to properly cross-examine the three former clients when they denied having ever discussed any loan arangements with respondent. There is, however, another possible explanation of counsel’s failure to cross-examine the three witnesses regarding any loan discussions: all of the witnesses had been unequivocal in their denials, and cross-examination might have been more harmful than helpful. Too, we note that Bennie Smith was cross-examined by both respondent and his lawyer with no demonstrable effect upon the integrity of his testimony.

Substituted counsel also focuses upon a statement by the first lawyer made near the conclusion of the testimony before the Hearing Board:

“[Defense counsel] : May I add the nature of these proceedings and my role as colleague? And, I think, I may have mentioned this before, that the early canons of ethics called upon lawyers to help and befriend other lawyers, which is precisely what I am doing without any remuneration either in this case or in the early Taylor case; simply because of this duty, and because, apparently, he is not able to obtain any other experienced or competent counsel to represent him.
I am leaving his defense with him, and I am ready to advise him in a guiding capacity on the stand. And the rest of his defense, I depended on him to procure all his own evidence. And I put the burden of responsibility on him to be able to rebut or meet whatever testimony, adverse testimony, would come up. ***”

While the purpose of the quoted statement is unclear to us, a reading of the record does not persuade us that respondent has been unfairly dealt with. There is in this record no indication by respondent of the slightest dissatisfaction with the quality of representation by his lawyer prior to the motion for substitution of counsel filed in this court. It is of primary importance, in considering the argument that a remand for a new hearing is required by reason of the asserted inadequacy of counsel’s representation of respondent, that respondent is not unskilled in the law. He is not one, like the usual defendant in a criminal case, who knows little or nothing of the need for investigation, witnesses, proof of mitigating circumstances, and similar matters. He is a licensed lawyer, and his active participation in the hearing, together with his responses to the questions of the hearing panel members, clearly indicate that he was not intimidated by the proceedings. He had known the charges against him for a minimum of some three months prior to the hearings and can scarcely complain of a lack of time to prepare, particularly when he personally knew all that had occurred between him and his clients.

The testimony by the defrauded clients was positive and convincing, and a reading of respondent’s testimony simply corroborates the Hearing Board’s finding that it is unworthy of belief. In short, there is no reason to believe that a rehearing would present any different evidence on the merits of the complaints or any different findings by the Board.

As this court stated recently, “[w] hen a lawyer *** converts a client’s funds to his own personal use he commits an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney’s oath, calling for the attorney’s disbarment.” (In re Stillo (1977), 68 Ill. 2d 49, 54.) In fact this court has even disbarred an attorney for an isolated act of conversion. (See cases cited in In re Fumo (1961), 22 Ill. 2d 429, 431.) Considering that respondent has been guilty of three independent acts of conversion and long-continuing false representations to his clients, together with the absence of candor, remorse, or attempts at restitution, a proper sense of concern for the protection of the public requires respondent’s disbarment.

It is so ordered.

Respondent disbarred.

MR. JUSTICE WARD took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 50545.
    RURAL ELECTRIC CONVENIENCE COOPERATIVE CO., Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Appellees.

      Opinion filed March 20, 1979.

      Edward G. Free, of Free & Free, of Springfield (Jon W. DeMoss, Albert J. Cross, and Michael W. Hogan, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and James E. Weging, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Elmer Nafziger, of Nafziger & Otten, of Springfield, for appellee Central Illinois Public Service Company.
    James H. Eddleman, of Springfield for amicus curiae
      Association of Illinois Electric Cooperatives.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a dispute over which of two “electric suppliers” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 403.5) is entitled to serve a major, new, commercial customer. The plaintiff, Rural Electric Convenience Cooperative Co. (Cooperative), is an “electric cooperative” within the meaning of section 3.4(b) of the Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 403.4(b)). The principal defendant, Central Illinois Public Service Company (Utility) is a public utility within the meaning of section 10.3(c) of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. Ill 2/3, par. 10.3(c)). (Both “public utilities” and “electric cooperatives” are “electric suppliers” subject to the Electric Supplier Act. (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 403.5.)) Early in 1974, the defendant-intervenor, Freeman Coal Mining Company (Freeman), discussed with Utility plans to construct a new coal mine in the west half of Section 23, Township 12 North, Range 6 West of the Third Principal Meridian, Macoupin County. Shortly thereafter, Utility served notice upon Cooperative pursuant to section 7 of the Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 407) that Utility intended to extend certain of its existing lines to provide service to the Freeman mine. Cooperative thereupon brought this action before the defendant Illinois Commerce Commission (Commission) complaining that Cooperative, and not Utility, was entitled to provide service to the mine.

The Commission found in favor of Utility, and, on administrative review, the circuit and appellate courts affirmed. (56 Ill. App. 3d 281.) We granted Cooperative’s petition for leave to appeal pursuant to our Rule 315 (65 Ill. 2d R. 315), and now we vacate the judgments and set aside the order below and remand the cause to the Commission with directions.

The starting point of our analysis is the Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 401 et seq.). Several sections of the Act set forth a comprehensive scheme for determining which of two or more contending suppliers is entitled to serve a given customer or location. (E.g., Ill. Rev. Stat. 1977, ch. 111 2/3, pars. 405, 408.) However, section 2 of the Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 402) states as follows:

“The General Assembly declares it to be in the public interest that, in order to avoid duplication of facilities and to minimize disputes between electric suppliers which may result in inconvenience and diminished efficiency in electric service to the public, any 2 or more electric suppliers may contract, subject to the approval of the Illinois Commerce Commission, as to the respective areas in which each supplier is to provide service. ”

Section 6 reiterates this point:

“Any 2 or more electric suppliers may contract together defining and delineating, as between themselves, one or more service areas in which each such contracting supplier shall be entitled to furnish service. Such contracts are subject to the approval of the Commission.” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 406.)

These two sections make clear that, once properly approved by the Commission, such service area agreements control the rights of the parties to the agreement, to the exclusion of the Act, except insofar as the agreement incorporates the Act. (We are not faced here with any claim that the agreement is repugnant to the purposes of the Act and therefore void.)

Utility and Cooperative have entered into such a service area agreement, dated February 19, 1969, which was approved by the Commission by an order dated April 9, 1969 (Commission Docket No. ESA — 100). Section 2 of that agreement provides in part that,

“The parties hereto covenant and agree that Cooperative shall be entitled exclusively to serve all consumers with their electric service requirements in the area or areas designated as RECC on the maps hereto attached ***.”

It is undisputed that the Freeman mine is located within the area Cooperative is “entitled exclusively to serve” by virtue of the agreement and that Utility’s rights therefore depend upon the applicability of one of the exceptions to the above-quoted language of the agreement.

The exception upon which Utility relies provides as follows:

“[P] rovided further, however, whenever the electrical load of a prospective consumer in any area outside of incorporated areas is such that its anticipated load during the first year of normal operation will require, as determined in accordance with accepted engineering practices, that the load be supplied through a connection to and/or an extension of an existing as of July 2, 1965 line having a voltage of 34.5 KV or higher, the supplier shall be determined under the Electric Supplier Act as approved July 2, 1965.”

It is undisputed that the Freeman mine will require service by a line having a voltage of 34.5 KV or higher. However, it is hotly disputed as to whether “accepted engineering practices” would dictate “that the load be supplied through a connection to and/or an extension of” a line which was in existence as of July 2, 1965, having such voltage. The Commission never decided this precise question, because it failed to give effect to the words “existing as of July 2, 1965.” The Commission held:

“This exception, in the Commission’s interpretation thereof, purposely left open the question as to who is entitled to serve any new loads that may locate in any of the party’s respective service areas and would require line voltage of 34.5 KV or higher for the providing of adequate service to such customers.” (Emphasis added.)

We disagree. The plain language of the agreement is unambiguous. It does not leave open the question of who is entitled to serve “any” new 34.5 KV or greater loads. Rather, it only leaves the question open where “accepted engineering practices” would “require” that the load be supplied through a connection to and/or an extension of a line which was “existing as of July 2, 1965.” Any other construction would render the term “existing as of July 2, 1965” mere surplusage. Such a construction runs afoul of well-established principles of contractual interpretation (e.g., Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283), and no amount of deference to the special expertise of the Commission can overcome this flaw in the Commission’s reasoning.

The jurisdiction of the circuit court to review findings of the Commission is limited to that “provided by law.” (Ill. Const. 1970, art. VI, sec. 9. See also People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 99.) The circuit court’s jurisdiction in this case is founded upon section 68 of the Public Utilities Act, as amended (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 72), which provides that an “order or decision of the Commission shall not be set aside unless it clearly appears that the finding of the Commission was against the manifest weight of the evidence ***, or that the [decision] was without the jurisdiction of the Commission.” See also Citizens Utilities Co. v. Commerce Com. (1971), 50 Ill. 2d 35, 39.

The term “against the manifest weight of the evidence” is broad enough to encompass the alleged invalidity of the Commission’s interpretation of the service agreement at issue in this case.

While the approval of electrical service area agreements is a matter within the special competence and statutory discretion of the Commission, we find the Commission’s interpretation of the language of this agreement is contrary to established principles of contractual interpretation, and we need not defer to such an interpretation. The interpretation of the unambiguous language of written agreements is a matter which courts traditionally have considered to be within their special competence, and therefore, not to be left solely to the finder of fact, whether it be a jury (e.g., Chicago Daily News, Inc. v. Kohler (1935), 360 Ill. 351, 363) or an administrative agency (4 K. Davis, Administrative Law Treatise 196-97 (1958)). The utility of legally binding agreements between private parties depends upon the degree of certainty with which the parties can predict the meaning of the various terms of their agreement. A greater degree of certainty can be obtained by adherence to established principles of contractual interpretation than by undue deference to a given agency’s particular expertise. Especially where, as here, the term in question (existing as of July 2, 1965) is otherwise unambiguous, we do not find that the agency’s expertise sheds any additional light upon the question.

Accordingly, we vacate the judgments and set aside the order below and remand the cause to the Commission with directions to determine whether “accepted engineering practices” would require that the Freeman mine’s load be supplied through connection to and/or an extension of a line which was in existence as of July 2, 1965. If the Commission finds that “accepted engineering practices” would not so dictate, it is directed to enter an appropriate order in favor of Cooperative. However, if the Commission finds that “accepted engineering practices” would require that the Freeman mine’s load be supplied through connection to or extension of a line which was in existence as of July 2, 1965, then it is directed to reinstate its prior order in favor of Utility.

The Commission’s findings regarding the application of sections 5 and 8 of the Electric Supplier Act are not against the manifest weight of the evidence. Section 5 provides in part:

“Each electric supplier is entitled, except as otherwise provided in this Act or (in the case of public utilities) the Public Utilities Act, to (a) furnish service to customers at locations which it is serving on the effective date of this Act ***.” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 405.)

The Commission found that Utility was not serving any customer at the location of the Freeman mine on the effective date of the Act. The record is not clear as to whether on the effective date of the Act, Cooperative was providing any service at all to the location which now includes the Freeman mine. Rather, the key evidence presented to the Commission on this specific question was the testimony of Cooperative’s witness, Roy Goode, who never specifically indicated whether, on the date of the Act, Cooperative was providing service to a customer at the location now occupied by the Freeman mine. On this narrow basis, we affirm the Commission’s finding. We therefore express no opinion as to the validity of the suggestion by the Commission and the majority of the appellate court that service by low voltage lines is inadequate to invoke the priority provisions of section 5 as to new customers at a location requiring service by a line having a voltage of 34.5 KV or higher.

Section 8 provides that, in determining which of two electric suppliers should be permitted to furnish service, “the Commission shall act in the public interest and shall give substantial weight to the consideration as to which supplier had existing lines in proximity to the premises proposed to be served, provided such lines are adequate. In addition, the Commission may consider, but with lesser weight, (a) the customer’s preference as to which supplier should furnish the proposed service, (b) which supplier was first furnishing service in the area, (c) the extent to which each supplier assisted in creating the demand for the proposed service, and (d) which supplier can furnish the proposed service with the smaller amount of additional investment. The Commission, however, shall give no weight or consideration to the fact that any supplier has or has not been issued a certificate of public convenience and necessity in the area proposed to be served.” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 408.) The Commission found that Utility, and not Cooperative, had existing adequate lines in proximity to the premises, that Freeman had expressed no preference for either supplier, that neither supplier had assisted in creating the demand for the service, and that the additional investment required was “essentially equal under both electric suppliers’ plans of service.” The Commission concluded that the public interest requires that Utility furnish the proposed service. We agree with the appellate court that the Commission’s ultimate findings regarding the application of the section 8 criteria are not against the manifest weight of the evidence. See 56 Ill. App. 3d 281, 283-84.

For the foregoing reasons, the judgments of the circuit and appellate courts are vacated; the order of the Commerce Commission is set aside, and the cause is remanded to the Commerce Commission with directions to proceed in accordance with the views expressed herein.

Judgments vacated; order set aside; cause remanded, with directions.


text:
    (No. 51374.
    THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. ALLEN ROSIN, Judge, et al., Respondents.

      Opinion filed March 20, 1979.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Francis X. Speh, Jr., and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    Birnbaum & Bimbaum, of Chicago (Steven M. Levin, of counsel), for respondent.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case involves the power of the circuit court to reduce or modify a misdemeanant’s sentence of imprisonment in a proceeding begun more than 30 days from the date on which that sentence originally was pronounced and entered of record, where, in the interim, execution of that sentence had been stayed pending appeal. We hold that the circuit court was without power to reduce or modify its earlier sentence in this case, and, accordingly, we issue a writ of mandamus commanding the circuit court to vacate and expunge its order modifying defendant’s sentence, and to issue the mittimus for the execution of its original sentence.

On February 23, 1977, following a bench trial in the circuit court of Cook County, the defendant-respondent, Julio Cesar Velasco, was convicted of one count of obstructing a police officer in violation of section 31 — 1 of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1975, ch. 38, par. 31—1), a Class A misdemeanor. On that same date, the court sentenced the defendant to 60 days in the House of Corrections, but stayed execution of that sentence pending Velasco’s appeal to the Appellate Court, First District.

However, finding no appealable issues, Velasco’s counsel, the public defender of Cook County, subsequently filed a motion for leave to withdraw as appellate counsel, pursuant to Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396. Velasco then retained substitute counsel, who failed to prosecute the appeal, whereupon, by an order entered June 19, 1978, the appellate court dismissed the appeal for want of prosecution. The circuit court received the mandate of the appellate court on August 17, 1978, on which date the defendant moved to transfer the case to the judge who had tried and sentenced him, to give that judge an opportunity to reconsider defendant’s sentence.

The motion was granted, and on September 25, 1978, following a hearing, the sentencing judge ruled that, upon remand from the appellate court, the circuit court reacquired jurisdiction to modify an unexecuted misdemeanor sentence on grounds neither raised in, nor addressed by, the appellate court. Accordingly, after hearing additional evidence regarding the defendant’s post-conviction behavior, the court modified defendant’s sentence to one year’s probation, conditioned upon the first four days being served in the House of Corrections, but against which four days already served were to be credited. Thus, rather than serving 60 days in the House of Corrections as required by his original sentence, the defendant would remain at liberty on probation. The State’s Attorney of Cook County thereupon brought this mandamus action seeking to reverse the respondent sentencing judge’s modification of the respondent-defendant’s sentence, there being no provision for the State to appeal the judge’s decision through normal appellate channels.

The key statutory provision in question is section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005—8—1(c)). The immediate predecessor of section 5—8—1(c) was enumerated 5—8—1(d) (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—1(d)). Under Public Act 80—1099, section 5—8—1(d) was reclassified as section 5—8-1(c) (1977 Ill. Laws 3264, 3309), but its language remains unchanged in aU ways material to this case.

Because defendant was sentenced prior to the effective date of Public Act 80—1099 (February 1, 1978), he could not elect to be sentenced under the Code as amended by Public Act 80—1099, even though his case was still pending on appeal on the effective date of the Act (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1008—2—4(b)).

To the extent that PubHc Act 80 — 1099 provided an additional remedy to persons after sentencing, however, that remedy presumptively would be available to persons upon whom sentences already had been imposed as of the effective date (see People ex rel. Kubala v. Kinney (1962), 25 Ill. 2d 491, 494-95 (parole)), though any sentence thereby modified or reduced must conform to the Code as it stood prior to Public Act 80 — 1099. To the extent that the amendatory act extended the period of limitations for assertion of a right, the act would not operate to revive a previously barred claim. (See, e.g., People v. Thomas (1970), 45 Ill. 2d 68, 72-73 (Post-Conviction Hearing Act).) Thus the statute we first construe is section 5—8—1(c). The predecessor of section 5—8—1(c) has been construed by the appellate court to be applicable to misdemeanants. (People v. Cornett (1975), 29 Ill. App. 3d 244, 247.) When the General Assembly reenacted this provision without expressing a contrary view, “it is generally concluded that the legislature intended to adopt the prior construction given to these terms.” (Hupp v. Gray (1978), 73 Ill. 2d 78, 86.) Thus, we hold that section 5—8—1(c) is available to a misdemeanant serving a sentence of imprisonment.

The time within which the court may modify a sentence pursuant to section 5—8—1(c) and its predecessor runs from the date on which that sentence was “imposed.” Respondent Velasco claims that, in this context, “imposed” must mean “executed,” and that a stay of execution of a sentence therefore also tolls the running of the period for its modification. We disagree.

The imposition of sentence is referred to several times throughout the Unified Code of Corrections. In no instance we have found does the imposition of sentence refer to the execution of sentence. Rather, for example, section 5—4—1 (a) provides that “a hearing shall be held to impose the sentence” (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005—41 (a));section 5—5—3.2 refers to factors tobe considered in “imposing” a term of imprisonment (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005—5—3.2). We therefore hold that the date on which the sentence is “imposed” for purposes of section 5—8—1(c) is the date on which the defendant is sentenced. Although the council commentary to section 5—8-l(c)’s predecessors suggests that the provision is “[i]n accord” with provisions in other jurisdictions (Ill. Ann. Stat., ch. 38, par. 1005—8—1(d), Council Commentary, at 461 (Smith-Hurd 1973)), such as Rule 35 of the Federal Rules of Criminal Procedure, which do provide an extended period of time for modification of a sentence after an appeal, even a cursory look at those provisions reveals drastic differences in language, differences which we find considerably more persuasive than the vague language of the council commentary.

Finally, although defendant did not treat his plea below as a proceeding in the nature of a post-conviction proceeding pursuant to People v. Warr (1973), 54 Ill. 2d 487, or as a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), we deem it appropriate to consider these theories now advanced in support of the sentencing judge’s action, before commanding him to vacate his order. Neither theory supports the decision below, however. Section 72 is not available to attack a judgment on the grounds that evidence which did not even exist at the time of that judgment (i.e., defendant’s post-conviction behavior) should have been presented. Similarly, since defendant’s claim in the nature of a post-conviction proceeding (alleging ineffective assistance of counsel) is based upon his counsel’s failure to present those same facts (defendant’s post-conviction behavior) to the sentencing judge, this theory too must fail. The effective assistance of counsel does not include the ability to foretell the future.

The trial court therefore was without power to enter the order it did reducing defendant’s sentence, and in light of the unavailability of normal appellate channels to review the trial court’s action, as well as the importance of the question to the administration of criminal justice in this State, we hold that mandamus is an appropriate remedy to compel the trial court to withdraw the unlawful modification of defendant’s original sentence. We further hold that by seeking such modification in the trial court the defendant has waived any claim that vacating said modification would subject him to “double jeopardy.”

For the foregoing reasons, we award a writ of mandamus commanding the Honorable Allen Rosin, judge of the circuit court of Cook County, to vacate and expunge his prior order modifying respondent Velasco’s sentence, and further commanding the issuance forthwith of a mittimus for the incarceration of respondent Velasco.

Writ awarded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50820.
    HEALTH & HOSPITALS GOVERNING COMMISSION OF COOK COUNTY et al., Appellees, v. THE INDUSTRIAL COMMISSION et al.-(Marco Rodia, Appellant.)

      Opinion filed March 20, 1979.

      Jay M. Shapiro and Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Miles N. Beermann, of counsel), for appellant.
    Winston & Strawn, of Chicago (Calvin P. Sawyier and Danae Prousis, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Marco Rodia, while in the employ of respondent, Health & Hospitals Governing Commission of Cook County, sustained accidental injuries arising out of and in the course of his employment resulting in his complete disability. He was awarded compensation for permanent and complete disability, a pension for life (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f)) and $19,446.60 for medical expenses. On review the Industrial Commission affirmed the award and ordered that it stand as the decision of the Commission. On certiorari the circuit court of Cook County, finding that the decision of the Industrial Commission was against the manifest weight of the evidence, reversed and petitioner appealed (Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a))).

The testimony shows that on March 28, 1974, petitioner was employed by respondent as an electrical construction worker and was to install an electrical duct at Cook County Hospital, located at 1835 West Harrison Street, Chicago. While he was standing on a ladder, about five feet above the floor, the ladder collapsed. He fell, striking his right ankle, left leg, left arm, left side, and left shoulder against the concrete floor. He was taken to the hospital, where his treating physician instructed him to stay home and remain off his feet. Petitioner complied, spending the next three weeks in bed. On May 11, 1974, complaining of numbness in his left leg, petitioner was admitted to a hospital. The cause of the numbness was found to be a blood clot in an artery in his left thigh; petitioner was also diagnosed as having pulmonary edema (water in the lungs) and a severe form of congestive heart failure. Doctors surgically removed the blood clot and petitioner was released from the hospital. When he attempted to return to work approximately two months later, petitioner’s breathing difficulty and leg stiffness forced him to return home. He was readmitted to the hospital in September and November 1974, and in February 1975, for treatment of his heart condition and has not since returned to work.

The medical witnesses are in agreement that when petitioner was admitted to the hospital on May 11, 1974, he was suffering from severe congestive heart failure and that because of that condition he was permanently disabled. Dr. Gustave Bermudez, called by petitioner, expressed the opinion that the accident might have aggravated or accelerated petitioner’s heart condition, thereby causing the severe congestive heart failure from which he suffered. Dr. Gerry A. Smyth, called by respondent, in response to a hypothetical question, expressed the opinion that there was no causal relationship between the fall from the ladder and petitioner’s condition of congestive heart failure.

Dr. Bermudez, a specialist in cardiology and, at the time of the hearing before the arbitrator, chief cardiologist at Columbus-Cuneo-Cabrini Medical Center, testified that he had been petitioner’s treating physician for approximately five years. Petitioner had had an episode of heart trouble in 1961, and in 1970 had undergone open heart surgery; on March 7, 1974, he had been hospitalized for “shortness of breath,” and Dr. Bermudez described his condition at that time as a “mild episode of congestive heart failure.” He had, however, responded well to therapy and had been allowed to return to work without restrictions. Dr. Bermudez testified that petitioner’s heart condition suddenly began to deteriorate after the accident of March 28, 1974, and that since that time petitioner “had been on a downhill course.” He explained that there is a close relationship between the regulatory centers in the base of the brain and the heart, suggesting that the trauma of the accident could have aggravated or accelerated the deterioration of petitioner’s heart condition.

Dr. Smyth, called by respondent, was a specialist in cardiology. He was on the attending staff of Northwestern Memorial Hospital, on the consulting staff of the Veterans Administration Lakeside Hospital, and an associate professor at the Northwestern University Medical School. Dr. Smyth, in response to a hypothetical question, expressed the opinion that there was no causal connection between the petitioner’s fall and the condition upon admission to the hospital some weeks later. He was of the opinion that the embolus diagnosed at the time of the admission was “an acute embolus” which “had happened right on the same day he was admitted.” It was his opinion that if the fall from the ladder had worsened petitioner’s heart condition he would have experienced congestive failure almost immediately. He testified that trauma could not cause an individual to “throw a clot,” that in petitioner’s case the clot had formed in the heart and traveled to the leg, and that a drop in blood pressure would not accelerate the “throwing of a blood clot” from the heart. He expressed the further opinion that inactivity would be beneficial and would lessen the likelihood of formation of clots.

Subsequent to the hearing before the arbitrator Dr. Smyth examined petitioner, and in his report, offered in evidence on review, he again expressed the opinion that there was no causal connection between petitioner’s fall from the ladder and his state of cardiac failure or the acute embolization to his leg.

Petitioner contends that the evidence is sufficient to sustain the award and that the circuit court erred in holding that the decision of the Commission was against the manifest weight of the evidence. It is respondent’s position that the petitioner’s injury did not arise out of and in the course of his employment for the reason that the employment was not “a causative factor” in his heart condition, and that neither his employment, nor the fall from the ladder, aggravated or accelerated his preexisting condition.

Where medical testimony is conflicting, it is for the Commission to determine which testimony is to be accepted. (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350.) It is the Commission’s function to resolve disputed questions of fact, including those of causal connection. (Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537.) Respondent argues that the fact that petitioner’s congestive heart failure did not occur until approximately 52 days after the accident made it “highly unlikely that his heart failure occurred in the course of his employment.” We note that in Proctor the employee was injured on December 11, 1962, and his cardiac failure and death occurred on June 10, 1963. In reinstating the award the court said:

“It is pertinent, too, to observe that we have said that even though it seems probable from the evidence that the ultimate outcome of a decedent’s heart condition would have been death at some indeterminate date in the future, and possibly under circumstances in no way related to employment, these contingencies will not, of themselves, necessarily invalidate an award as being manifestly against the weight of the evidence where the evidence was such that the Commission could have properly inferred that occupational activity was a causative factor in hastening the decedent’s death.” 41 Ill. 2d 537, 542.

The Commission can draw reasonable inferences from the evidence, and the fact that other inferences might have been drawn does not render them contrary to the manifest weight of the evidence. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10.) The Commission’s decision was not against the manifest weight of the evidence, and in holding that it was, the circuit court erred.

Respondent also contends that it was prejudiced by its inability to have petitioner examined by a doctor (Ill. Rev. Stat. 1973, ch. 48, par. 138.12) prior to the arbitration hearing. The record shows that on the day on which respondent’s doctor had scheduled an examination petitioner was hospitalized and unable to keep the appointment. The hearing before the arbitrator had been continued three times on the respondent’s motion and more than two months had elapsed since the date on which the case was set for “immediate hearing.” The hearing before the arbitrator was recessed after petitioner testified and was not reconvened until six months later. After petitioner rested his case the hearing was recessed for three weeks. Colloquy between counsel indicates that respondent requested that petitioner be examined by Dr. Buckingham and that the “proofs be kept open” so that he could testify following the examination. Dr. Smyth examined petitioner subsequent to the hearing before the arbitrator, and the transcript of the proceedings on review contains his report, which was virtually identical, including his opinion on causation, to his testimony before the arbitrator. The record does not show any further request for examination by Dr. Buckingham. Under the circumstances, respondent has not shown that it was prejudiced either by the arbitrator’s requiring that the hearing proceed or petitioner’s failure to be examined.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the award of the Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 50936.
    NORTH SHORE SAVINGS AND LOAN ASSOCIATION et al., Appellees, v. TIMOTHY E. GRIFFIN, Commissioner of Savings and Loan Associations, et al.—(Timothy E. Griffin, Appellant.)

      Opinion filed March 20, 1979.

      MORAN, J., took no part.
    William J. Scott, Attorney General, of Springfield (Jerome J. Webb, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Kenneth J. Click, of Overholser, Ray, Flannery & Click, Ltd., of Libertyville, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

In May 1976, defendant First Financial Savings and Loan Association (hereinafter First Financial) filed an application with defendant Timothy E. Griffin, Commissioner of Savings and Loan Associations for the State of Illinois (hereinafter Commissioner), seeking permission to relocate its business office from Downers Grove to Waukegan. Notice of First Financial’s application for relocation was published in the May 26, 1976, edition of the Chicago Daily News. Plaintiffs, two savings and loan associations with offices in Waukegan, filed written objections to the proposed relocation with the Commissioner. Following proceedings before a hearing officer for the Commissioner, First Financial’s application was formally approved on December 15, 1976.

Plaintiffs filed this action in the Lake County circuit court seeking administrative review of the Commissioner’s decision. The trial court, in response to plaintiff’s motion for summary reversal, held that First Financial had not given proper notice of its application for relocation. The court vacated the decision of the Commissioner and remanded the matter with instructions to conduct new hearings following proper notice. The appellate court affirmed. (60 Ill. App. 3d 313.) We granted the Commissioner’s petition for leave to appeal.

The Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, ch. 32, par. 701 et seq.) provides explicitly for publication of notice where a savings and loan association contemplates relocation of its business office:

“If a by-law amendment provides for a change in the location of an association’s business office or the establishment of an additional office, the Commissioner shall not approve the amendment unless he finds that *** (4) notice of the association’s proposal to establish a new office has been published at least once both in the community of the proposed new location and in the community of the present location; ***.” (Ill. Rev. Stat. 1975, ch. 32, par. 744(h).)

Section 1—10.17 of the Act defines “published” as follows:

“printed in the American language in a newspaper of general circulation published in the community in which the association’s business office is located, or if no such newspaper exists in that community, then in the county in which such business office is located.” Ill. Rev. Stat. 1975, ch. 32, par. 710.17.

The notice requirement of the Illinois Savings and Loan Act is virtually identical to the general statutory notice provision in section 5 of' “An Act to revise the law in relation to notices” (Ill. Rev. Stat. 1975, ch. 100, par. 5), which provides:

“When any notice is required by law or contract to be published in a newspaper (unless otherwise expressly provided in the contract), it shall be intended to be in a secular newspaper of general circulation, published in the city, town or county, or some newspaper specially authorized by law to publish legal notices, in the city, town, or county.”

Although both the trial court and the appellate court relied on this general notice provision, we think it more appropriate to base a decision on an interpretation of the Illinois Savings and Loan Act notice provision, which is more directly at issue.

The primary question which must be addressed by this court is whether the notice that First Financial placed in the Chicago Daily News satisfies the requirements set forth in the Illinois Savings and Loan Act. Resolution of this issue will turn upon our interpretation of the phrase “a newspaper of general circulation published in the community ***” found in section 1—10.17 of the Act (Ill. Rev. Stat. 1975, ch. 32, par. 710.17). In Polzin v. Rand, McNally & Co. (1911), 250 Ill. 561, this court defined a newspaper of general circulation as one which “circulates among all classes and is not confined to a particular class or calling in the community.” (250 Ill. 561, 575.) Therefore, the more precise issue confronting us is the meaning of the phrase “published in the community” within the context of the Illinois Savings and Loan Act.

On April 7, 1976, the Commissioner advised all Illinois savings and loan associations “that notice published in any of the three Chicago daily newspapers (Tribune, Sun-Times or Daily News) is appropriate for relocation of facility sites located in the Chicago SMSA [consisting of Cook, Will, Du Page, Kane, McHenry and Lake counties].” While an administrative interpretation is often helpful in determining legislative intent (Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 344-45), it obviously is not binding if erroneous (Martin Oil Service, Inc. v. Department of Revenue (1971), 49 Ill. 2d 260, 269). Based on our recent interpretation of a similar statutory notice provision in Garcia v. Tully (1978), 72 Ill. 2d 1, we believe the Commissioner’s statutory construction was erroneous.

Garcia is the most recent in a series of cases decided by this court dealing with the proper interpretation of the statutory language “a newspaper of general circulation published” in the community, city, district, etc. Prior to Garcia there was not total unanimity regarding the precise nature of this notice requirement, which is found in several Illinois statutes. (Compare Polzin v. Rand, McNally & Co. (1911) , 250 Ill. 561, and People ex rel. O’Connell v. Read (1912) , 256 Ill. 408, with People ex rel. City of Chicago Heights v. Richton (1969), 43 Ill. 2d 267, and Perkins v. Board of County Commissioners (1916), 271 Ill. 449.) In Garcia, we considered the publication requirement of section 104 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 585), which provides, in part, that township tax-assessment lists shall be published in a newspaper of general circulation published in the township. Relying on Polzin and O’Connell we held that “simultaneous circulation of [defendant’s] newspapers in the townships involved does not serve to make them newspapers published within the township within the contemplation of section 104.” (72 Ill. 2d 1, 14.) In reaching this decision, the court quoted from Polzin:

“If it had been intended that publication in a newspaper of ‘general circulation’ in the district should be a compliance with the law, the legislature would not have required that the publication be made not only in a newspaper of general circulation in the district, but also in a newspaper ‘published’ in the district. By the word ‘published’ is clearly meant the place where the newspaper is first issued or printed, to be sent out by mail or otherwise.” 72 Ill. 2d 1, 13.

The reasoning of Garcia, Polzin and Read is equaUy applicable to the present case. The legislature obviously used the words “published in the community” to limit the phrase “a newspaper of general circulation.” A decision to relocate a savings and loan association office will directly affect the residents of the involved communities. Only if they receive notice of the proposed relocation, however, will they be able to express their views to the Commissioner. It is our belief that the legislature intended the notice to occur on as local a level as possible so as to increase the likelihood that local residents would become informed of the proposed action.

Furthermore, the statutory provision in section 1 — 10.17 of the Act that provides for publication in the county if there is no newspaper of general circulation published in the community makes little sense if we accept the Commissioner’s argument that publish means “make known,” since, presumably, at least one newspaper of general circulation is “made known” in every community in the State. Also, the Commissioner’s interpretation of the statute would permit a savings and loan association to place a notice in a Chicago newspaper, which has a general circulation throughout the State, to notify residents of downstate communities of a proposed relocation. It is unlikely that the legislature intended such a result.

Accordingly, we hold that the requirement in the Illinois Savings and Loan Act that an association’s proposal to relocate its business office be printed in “a newspaper of general circulation published in the community” of the proposed new location and in the community of the present location requires placement of the notice in newspapers first issued or printed for distribution in the communities or counties involved. Therefore, under the facts of the present case, in order to constitute valid notice, there must be publication in newspapers first printed or issued for distribution in Downers Grove and Waukegan unless there are none, in which event publication would have to be in newspapers first printed or issued for distribution in the counties (Du Page and Lake) involved.

Finally, the Commissioner argues that there is an absence of evidence in the record concerning the place of first issuance of the Chicago Daily News and that without such evidence there was no basis for the decisions of the trial and appellate courts. We find no merit in this argument. The certificate of publication, which is a part of the record in this case, states that the Chicago Daily News is “a newspaper published in the City of Chicago, County of Cook and State of Illinois ***.” This certificate, signed by an authorized agent of the Chicago Daily News and duly notarized, clearly establishes Chicago as the place of first issuance of the newspaper. We believe that there was an adequate factual basis in the record to support the conclusions of the trial and appellate courts concerning the publication situs of the Chicago Daily News.

Having determined that the Chicago Daily News was first printed or issued for distribution in Chicago, we conclude that notice published therein does not satisfy the requirements of the Illinois Savings and Loan Act where an association proposes to relocate its business office from Downers Grove to Waukegan. In our judgment this conclusion implements the legislative intent. If we have misjudged it, the remedy rests with the legislature.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE MORAN took no part in the consideration or decision of this case.


text:
    (No. 51055.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM FRANKLIN, Appellee.

      Opinion filed March 20, 1979.

      William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay, Melbourne A. Noel, Jr., and William M. Wippold, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli and Gary R. Garretson, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The defendant, William Franklin, was found guilty of theft by deception in a Peoria County jury trial and sentenced to a term of to 4½ years’ imprisonment. The appellate court reversed the judgment and remanded the cause for a new trial on the grounds that defendant was denied his right to effective assistance of counsel because the court-appointed assistant public defender who represented him at trial had, as an assistant State’s Attorney, successfully prosecuted the defendant on an unrelated matter years earlier. (60 Ill. App. 3d 905.) We granted the State’s petition for leave to appeal.

During a March 31, 1977, sentencing hearing, Assistant Public Defender Donald Courson, who was the third public defender staff member to represent defendant, but had represented him throughout his earlier trial, realized for the first time that as an assistant State’s Attorney he had secured a burglary conviction against the defendant in September of 1972. It had been defendant’s earlier position that the William Franklin convicted in 1972 was not he, and it apparently was not until his belated acknowledgement of the falsity of his contention that his attorney realized his earlier prosecutorial role. On the basis of this newly discovered fact, defense counsel supplemented defendant’s motion for a new trial by alleging a conflict of interest. Specifically, he argued that the combination of two facts resulted in a conflict of interest: (1) that Assistant Public Defender Courson, who represented defendant at his 1977 trial, was the assistant State’s Attorney who prosecuted and obtained a conviction against defendant in 1972, and (2) that Assistant Public Defender Courson was a Peoria County assistant State’s Attorney from the time defendant was indicted on May 26, 1976, until January 1, 1977. The trial court thereupon conducted a brief hearing on the matter during which defense counsel indicated that he did not recall his prior prosecution of defendant until the sentencing stage of this case and had not done any work on the present case while employed in the State’s Attorney’s office. Failing to find even the appearance of impropriety under these facts, the trial court denied the motion for a new trial.

This court has repeatedly stated that a defendant’s fundamental right to effective assistance of counsel entitles the person represented to the undivided loyalty of counsel and prohibits a defense attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations. (People v. Coslet (1977), 67 Ill. 2d 127, 134; People v. Kester (1977), 66 Ill. 2d 162, 166; People v. Stoval (1968), 40 Ill. 2d 109, 111-12.) In furtherance of this fundamental right, this court has adopted a per se rule which provides essentially that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice, as prejudice is presumed by law. People v. Vriner (1978), 74 Ill. 2d 329, 340; People v. Precup (1978), 73 Ill. 2d 7, 10; People v. Coslet (1977), 67 Ill. 2d 127, 133; People v. Kester (1977), 66 Ill. 2d 162, 168; People v. Stoval (1968), 40 Ill. 2d 109,113.

The question, of course, is whether an actual or potential conflict existed, an issue this court has considered with some frequency. In People v. Stoval (1968), 40 Ill. 2d 109, the defendant’s conviction for burglary and theft was reversed where defendant’s court-appointed attorney was a member of a law firm which represented both the jewelry store which defendant was accused of burglarizing and its owner. Additionally, defense counsel had personally represented the store and its owner in previous legal matters. This court held that sound public policy disfavored representation of an accused by an attorney with such possibly conflicting interests “for who can determine whether his representation was affected, at least, subliminally, by the conflict.” (40 Ill. 2d 109, 113.) The showing of actual prejudice in that context was held unnecessary.

Subsequently, in People v. Kester (1977), 66 Ill. 2d 162, this court held that where the court-appointed assistant public defender who represented the defendant at the time his guilty pleas were accepted had earlier appeared on three occasions in the same criminal proceeding on behalf of the People as an assistant State’s Attorney, there existed a potential conflict of interest necessitating reversal of defendant’s conviction.

In People v. Coslet (1977), 67 Ill. 2d 127, the defendant widow was convicted of voluntary manslaughter in connection with the death of her husband. She was represented at trial by court-appointed counsel who was also acting as attorney for the administrator of decedent’s estate. As attorney for the administrator counsel had a duty to maximize the assets of the estate which would be distributed to decedent’s heirs. Also, his fee, as attorney for the administrator, would be affected by the value of the estate. Defendant’s conviction of manslaughter might have resulted in decedent’s real estate interests becoming part of that estate rather than passing to defendant as the surviving joint tenant. The conflict presented by the possibility that defendant’s conviction might enrich her deceased husband’s estate, the administrator of which her attorney represented, was enough to warrant a new trial under the Stoval per se rule.

The defendant here relies heavily on Kester for support of his contention that “defense counsel was laboring under a per se conflict of interest arising from counsel’s former prosecution of defendant for burglary.” Likewise, the appellate court cited Kester in reversing defendant’s theft conviction. We do not agree, however, that Kester requires reversal, for there is between the facts in this case and those in Kester a crucial difference. There, the court-appointed defense attorney had served previously as an assistant State’s Attorney in the same criminal proceeding. In that capacity, defendant’s court-appointed assistant public defender had thrice appeared in court on behalf of the People in the same case in which he later represented the defendant. That this distinguishing feature formed the underlying basis for the decision in Kester is evident from excerpts from that opinion:

“However, we believe that a potential conflict of interest nevertheless exists in a situation such as this when a prosecutor who personally has been involved in the prosecution of a defendant in a particular criminal proceeding later assumes the duties of court-appointed defense counsel for that defendant in the same proceeding. *** It might be contended, for example, that the advice and performance of court-appointed counsel in such a situation was affected by a subliminal reluctance to attack pleadings or other actions and decisions by the prosecution which he may have been personally involved with or responsible for. A defendant who has entered a plea of guilty might later suspect that his attorney’s advice thereon had been influenced to some degree by a subconscious desire to avoid an adversary confrontation with the prosecution as a consequence of his previous participation in the case as the prosecuting attorney.’'’ (Emphasis added.) 66 Ill. 2d 162, 167-68.

In the case before us, defense counsel, while he was employed by the State’s Attorney’s office, was not involved in defendant’s case. Although he had, years earlier, prosecuted and convicted defendant on a prior burglary charge, he had no recollection thereof during the trial. Obviously, the “subliminal effects” referred to in Stoval (40 Ill. 2d 109, 113) and “subtle influences” suggested in Kester (66 Ill. 2d 162, 163) need not concern us here for those factors require an awareness, not present here, of the facts creating them. In our judgment it is entirely clear that no conflict of interest arose under the facts of this case, and we need not speculate as to the result had counsel recalled the former prosecution. Accordingly, we decline to extend Kester to the facts of this case.

Finally, citing Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, defendant contends that once counsel raised the possibility that a conflict of interest existed, the trial court had a duty to either make an inquiry regarding the substance of defense counsel’s representations or accept counsel’s word that a conflict of interest existed. In Holloway, the United States Supreme Court held that where counsel appointed to represent several codefendants in a joint trial makes a timely pretrial motion for appointment of separate counsel due to the risk of a conflict of interest, the failure of the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk is too remote to warrant separate counsel denies defendants their constitutional right to assistance of counsel and requires reversal.

Holloway, however, is inapposite here. It dealt with a pretrial request for separate counsel due to a possible conflict of interest, while defense counsel here made a supplemental post-trial motion for a new trial based on an alleged conflict of interest. Furthermore, this case does not involve the Holloway issue of joint representation of codefendants. Finally, defendant overlooks the fact that the trial judge in this case did make inquiry of counsel regarding the foundation for his allegations that a conflict of interest existed, and determined that counsel neither recalled the former prosecution until the trial had ended nor had his previous work in the State’s Attorney’s office included defendant’s case.

There is, in our judgment, an additional ground for reversal not discussed by the parties but which we believe deserves mention. The logical inferences from this record are that had defendant not denied that it was he who was the subject of the 1972 prosecution and conviction, defense counsel would have realized prior to trial, as he did after the trial, that he had prosecuted the 1972 case against defendant. The question of a conflict, if one was thought to exist, could then have been explored in timely fashion. To now reward defendant’s deceit with a new trial would make a mockery of the truth-seeking process upon which our system of justice is founded.

The judgment of the appellate court reversing the circuit court and remanding the cause to the trial court is reversed, and the cause remanded to the appellate court for consideration of the additional issue there presented but not resolved.

Reversed and remanded.