author: CHIEF JUSTICE RYAN JUSTICE CLARK,

text:
    (No. 53954.
    JOHN CALVIN COLSON, Appellee, v. LEWIS STIEG, Appellant.

      Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

      CLARK, MORAN, and SIMON, JJ., specially concurring.
    Robert K. Skolrood, of Tulsa, Oklahoma (Jack D. Ward and John Templin, of counsel), for appellant.
    James R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

John Calvin Colson filed suit in the circuit court of De Kalb County charging that the defendant, Lewis Stieg, had published certain defamatory remarks about the plaintiff’s performance of his duties as an assistant professor in the Department of Library Science at Northern Illinois University. Lewis Stieg was chairman of the department. The plaintiff was first employed by Northern Illinois University in 1975 and had served in the capacity of assistant professor since that time. He had moved from Denver, Colorado, to accept a position at Northern with the expectation that he would be granted tenure; however, his request for promotion and tenure status was denied.

The complaint alleged that the defendant made two defamatory statements attacking the plaintiff in his profession, which, it is alleged, were therefore slanderous per se. (See Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340; Prosser, Torts § 112, at 754-60 (4th ed. 1971).) The first statement allegedly made by the defendant was:

“I have information I cannot divulge which reflects adversely on John’s performance as a teacher.”

The second statement allegedly made by the defendant was:

“I have counseled John many times about his teaching and the documents which would prove the counseling are missing from the department files under suspicious circumstances.”

In response to a demand for a bill of particulars, the plaintiff stated that the first words complained of were spoken on October 3,1977, at a meeting of the Department of Library Science Personnel Committee assembled for the purpose of evaluating John Colson’s performance as an assistant professor and for recommendations regarding his application for tenure and promotion. The second statement was made on April 4, 1978, before the University Council Personnel Committee assembled to consider plaintiff’s appeal from the Department’s recommendation that tenure and promotion be denied.

The trial court granted the defendant’s motion to dismiss the plaintiff’s first amended complaint for failure to state a cause of action. On appeal, the appellate court held that the first statement complained of was slanderous per se, incapable of an innocent construction, and actionable despite a qualified privilege because the plaintiff had properly alleged malice. The appellate court held that the second statement was reasonably capable of conveying an innocent meaning and therefore was not actionable. Since the amended complaint had stated a cause of action for defamation based upon the first statement, the trial court’s order was reversed in part and the cause remanded for further proceedings. (86 Ill. App. 3d 993.) We granted leave to appeal. 73 Ill. 2d R. 315(a).

The correctness of the appellate court’s holding as to the second statement has not been raised in this court. We are therefore concerned on this appeal only with defendant’s first statement. The defendant contends the statement was absolutely privileged or, alternatively, that it is capable of being innocently construed as one of opinion. The plaintiff insists that the statement was made only under a qualified privilege, that it was a factual assertion, maliciously made, and that it constituted slander per se in that it damaged ' plaintiff in his profession.

The circumstances surrounding the making of the statements in question are not such as to require the protection of an absolute privilege, but instead, come within the accepted areas to which a qualified privilege has been extended. (See Prosser, Torts § 115, at 785 (4th ed. 1971).) However, the classification of the privilege is of little help in determining whether or not the defendant’s statement is actionable or whether the allegations of the complaint state a cause of action.

Since the 1964 Supreme Court decision in New York Times Co. v. Sullivan (1964), 376 U.S. 254,11 L. Ed. 2d 686, 84 S. Ct. 710, a large area of the law concerning privileges has been taken over and altered by first amendment constitutional considerations. (See generally Schaefer, Defamation and the First Amendment, 52 Colo. L. Rev. 1 (1980).) As a result, the scope of the privileges in the law of defamation has been broadened beyond that within which they had previously been recognized. (Prosser, Torts § 118, at 819 (4th ed. 1971).) The New York Times holding has essentially replaced the common law qualified privilege which was stated in the terms of “fair comment” upon public figures and public employees. The “fair comment” common law privilege was not limited to public discussion of public officials or figures, but also extended to the discussion of matters of public concern. Professor Prosser has stated that there is no reason the constitutional privilege of New York Times should not be extended to all matters of public concern. (Prosser, Torts § 118, at 823 (4th ed. 1971).) This court has, to a degree, extended the holding of New York Times in that direction.

In Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, a newspaper article had referred to an osteopathic physician as a “quack.” This court acknowledged that the plaintiff was not a public official or a public figure, but held that the controlling question is whether a public issue, not a public official or public figure, is involved. After considering several Supreme Court cases, this court stated that the factor triggering the constitutional privilege seems to be that the statement concerns a matter of “public interests” and stated:

“In our judgment the conclusion is inescapable from [the cases discussed] that the defendants in this case must be accorded at least the same degree of immunity accorded to the defendant in [Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975]. Medical quackery is an area of critical public concern which clearly qualifies under the Butts test as a subject ‘“about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”’ [388 U.S. 130, 147, 18 L. Ed. 2d 1094, 1106, 87 S. Ct. 1975, 1987.]” (Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 291.)

This court also stated in that case:

“In determining a subject’s importance to the public, we must consider not only the number of persons affected by the subject, but also the severity of its impact upon those so affected. Thus, the fact that plaintiff’s personal contacts were presumably with only a small portion of the public does not militate against immunity where the publications concern a matter of such vital importance as the qualifications and practices of one who represents herself as qualified to treat human ills.” Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 292.

In Gertz v. Welch (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the Supreme Court discussed the need to accord adequate protection of first amendment liberties by avoiding self-censorship and the stifling of the free flow of information and expression of ideas. The court noted that in New York Times it had found that under the traditional action for defamation, the allowance of the defense of truth, with the burden of proving it on the defendant, deterred not only false statements, but also legitimate comment. Understandably, one being cognizant of the ever-present danger of being made a defendant in a defamation action and of the burden that would be placed upon him in sustaining the defense of truth would be reluctant to freely express himself on a controversial subject. The court, in Gertz, discussed the need to balance the interest of a State in redressing wrongful injuries of defamed persons against the need for vigorous and uninhibited discussion and stated:

“In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise.” Gertz v. Welch (1974), 418 U.S. 323, 342, 41 L. Ed. 2d 789, 806, 94 S. Ct. 2997, 3008.

Thus, under the New York Times rule, in order to accord the breathing space essential to the exercise of the constitutional freedoms of speech and press, the burden of proof shifted, and in cases in which that holding is applicable, the burden is no longer on the defendant to prove the truthfulness of the utterance. The burden is now on the plaintiff to plead and prove actual malice on the part of the defendant, that is, that the utterance was made with knowledge of its falsity or in reckless disregard of whether it was false or true. Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 293.

In reaching the accommodation between competing concerns, referred to in Gertz, the challenged statement must be assessed in the context in which it was published. The extent of the publication and those who were its recipients are subjects of primary consideration. Since whether or not one is defamed depends upon the effect the publication had upon those who received it, the statement must be capable of conveying a defamatory meaning to the hearer. (See Prosser, Torts § 111, at 737 (4th ed. 1971); L. Eldredge, The Law of Defamation § 9, at 44-45 (1978).) The focus therefore must be upon the statement and its predictable effect upon those who received the publication. Information Control Corp. v. Genesis One Computer Corp. (9th Cir. 1980), 611 F.2d 781, 784; Gregory v. McDonnell Douglas Corp. (1976), 17 Cal. 3d 597, 603, 552 P.2d 425, 429, 131 Cal. Rptr. 641, 645; Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. And Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1352 (1975).

The publication of the questioned statement in our case was not made to the general public and it was not made to a group of persons who had no other means of acquiring knowledge of the plaintiff’s teaching capabilities. The statement was made to the Department of Library Science Personnel Committee, which was charged with the responsibility of evaluating plaintiff’s performance as a teacher. The record does not disclose the exact number of people who comprised this committee, but the allegations of the complaint stated that the statement was made to four named individuals at that meeting. Presumably, these four were the only members of the committee present. Thus, the publication was made to a very small, specialized group. All of the compelling reasons for applying the constitutional first amendment protections of New York Times are present in this case, especially the necessity for free and uninhibited discussion and the need to avoid self-censorship. In some cases teachers have been held to be “public figures” or “public officials” for purposes of applying New York Times. (See Johnson v. Board of Junior College District No. 508 (1975), 31 Ill. App. 3d 270; Kapiloff v. Dunn (1975), 27 Md. App. 514, 343 A.2d 251.) However, we need not in this case decide whether plaintiff was a public figure or public official, because the facts justify following Farnsworth and holding that this case clearly qualifies under the Butts test as a subject about which information is needed or appropriate to enable the members of the committee to cope with the issues confronting them.

The need for the free flow of information and for vigorous and uninhibited discussion in a situation such as we have before us is such that the first amendment privilege defined in New York Times must apply to the publication of statements to this committee. Absent this protection, those whose duty it is or those who are requested to give information to the committee will cautiously indulge in self-censorship to avoid the burden of defending a defamation action. This can only result in a severe limitation on the ability of the committee to perform its assigned task of evaluating performances of the personnel of the university. In light of the limited scope of the publication and the interest and concern of the group to whom the statement was published, we find that the first amendment privilege of New York Times must be applied to the statement made by the defendant.

Gertz noted that in addition to the more important consideration of society’s interest in public officials and affairs, which supported the decision of New York Times, there also exists the added factor that public officials and figures enjoy a greater access to channels of communication than do ordinary citizens. Therefore, the court concluded, a public official or figure would have a more realistic opportunity to counteract false statements than private individuals normally enjoy. This reasoning was also recognized in Wolston v. Readers Digest Association, Inc. (1979), 443 U.S. 157, 61 L. Ed. 2d 450, 99 S. Ct. 2701, and in Hutchinson v. Proxmire (1979), 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675. If the defendant in our case would have published the statement in question to the public in general, it is possible that the plaintiff would not have had sufficient access to the channels of communication to overcome or offset the damaging effect of defendant’s statement. We make no assessment of the propriety of the use of the New York Times privilege in such a situation. However, given the narrow extent of the publication in this case and the fact that the plaintiff had an opportunity for input to the committee and through appeal to have its decision reviewed by the University Council Personnel Committee, the reasoning of Gertz, Wolston and Hutchinson does not preclude applying the New York Times privilege in this case.

Under the holding of New York Times, the plaintiff must plead and prove actual malice in order to maintain an action for defamation. In this context, to satisfy the “malice” requirement, it is incumbent upon the plaintiff to plead and prove that the statement was made with knowledge of its falsity or in reckless disregard of whether it was false or true. (New York Times Co. v. Sullivan (Í964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) In Garrison v. Louisiana (1964), 379 U.S. 64, 74, 13 L. Ed. 2d 125, 132, 85 S. Ct. 209, 215, the Supreme Court held that under New York Times a public official might be allowed a civil remedy only if he establishes (1) that the utterance was false, and (2) that it was made with knowledge of its falsity, or (3) that it was made in reckless disregard as to its truth or falsity. (See also Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 293.) Since this case is before us on the pleadings, the allegations of the complaint must be judged against these requirements.

The amended complaint charged that the defendant made the following statement concerning the plaintiff:

“ 1 have information I cannot divulge which reflects adversely on John’s performance as a teacher.’
Said statement was made by Defendant knowing it to be false, without reasonable grounds for believing it to be true, maliciously, wilfully, intentionally and without reasonable justification or excuse with the intention of destroying Plaintiff’s personal and professional reputation, causing Plaintiff to be denied tenure, to be terminated from employment with Northern Illinois University effective May, 1979 and interfering with his ability to be suitably employed in the future. Said statement caused Plaintiff extensive mental and physical anguish and financial loss.”

These allegations do not strictly comply with the requirements of the Civil Practice Act, in that each separate allegation is not separately stated, but all are contained in one rambling sentence. (See Ill. Rev. Stat. 1977, ch. 110, par. 33.) Also, the allegations attempt-to state a cause of action based on intentional, wilful and wanton, and negligent conduct all in the same sentence. (See Ill. Rev. Stat. 1977, ch. 110, par. 43.) Furthermore, the sentence is replete with allegations of conclusions and not facts. (See Ill. Rev. Stat. 1977, ch. 110, par. 31.) However, the command of the Civil Practice Act is that the act “shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1977, ch. 110, par. 4.) As noted above, under New York Times, it is incumbent upon the plaintiff to plead and prove that the statement was made with knowledge of its falsity, or in reckless disregard of whether it was false or true.

The allegations quoted above, in addition to the many irrelevant charges, alleged that the statement was made by the defendant “knowing it to be false.” Also contained within the allegation is the charge that the statement was made maliciously, wilfully and intentionally.

In Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 266, and in Weber v. Woods (1975), 31 Ill. App. 3d 122, it was held that an allegation that the facts asserted were false and that the statement was made knowing it to be false were sufficient allegations. Although we do not cite the allegations contained in this complaint as a model, we find that the elements necessary under New York Times have been sufficiently alleged.

For the above reasons, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of De Kalb County for further proceedings in conformance with the holding in this opinion.

Affirmed and remanded.

JUSTICE CLARK,

specially concurring:

I agree with the majority’s conclusion that the complaint states a cause of action. It alleges that false and defamatory statements were made with actual malice, and alleges actual malice in terms almost identical to those held sufficient by this court in Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257. I do not think, however, that the plaintiff was required to allege actual malice according to the New York Times standard in order to state a cause of action. New York Times simply does not apply to this case.

It is not clear to me why, in a defamation action between two private persons — a college teacher and his department head — the New York Times requirement of knowing or reckless falsity should apply. I cannot subscribe to the majority’s apparent belief that defamation suits such as the one here so seriously threaten first amendment interests that imposition of the New York Times rule is necessary to protect them. Nor, apparently, does the United States Supreme Court. In Gertz v. Welch it declared that, in suits by private figures, imposing a standard of liability less rigorous than the New York Times standard does not impermissibly abridge freedom of speech and press. Gertz v. Welch (1974), 418 U.S. 323, 347, 41 L. Ed. 2d 789, 809, 94 S. Ct. 2997, 3010.

The New York Times rule was first enunciated by the United States Supreme Court in a case involving a defamation suit brought by a public official, and was made mandatory only for such plaintiffs. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710.) The court later extended the rule to suits by public figures. (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.) The plaintiff’s status as a public official or a public figure, to whom the New York Times standard must be applied, or as a private figure, to whom the standard does not apply, is the key factor in the United States Supreme Court’s analysis of first amendment constraints on State-law remedies for injury to reputation. Annot., Progeny of New York Times v. Sullivan in the Supreme Court, 61 L. Ed. 2d 975, 987-88 (1980); Christie, Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches, 75 Mich. L. Rev. 43 (1976); Hill, Defamation and Privacy under the First Amendment, 76 Colum. L. Rev. 1205 (1976); see Restatement (Second) of Torts secs. 580A (Defamation of Public Official or Public Figure), and 580B (Defamation of Private Person) (1977).

The Supreme Court’s definition of “public figure,” developed over a series of cases, includes any person having some special prominence in the affairs of society, or the resolution of public questions, either by having achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts, or by voluntarily injecting himself into a particular public controversy and thereby becoming a public figure for a limited range of issues. (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975; St. Amant v. Thompson (1968), 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323; Gertz v. Welch (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Time, Inc. v. Firestone (1976), 424 U.S. 448, 47 L. Ed. 2d 154, 96 S. Ct. 958; Wolston v. Reader’s Digest Association, Inc. (1979), 443 U.S. 157, 61 L. Ed. 2d 450, 99 S. Ct. 2701.) Clearly the plaintiff here is not within this category. Nor could he be deemed a “public official” simply because he is a public employee. (Hutchinson v. Proxmire (1979), 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675.) In sum, there •is no Federal constitutional reason why a plaintiff cannot recover actual damages in a defamation suit upon a showing of the defendant’s negligence with regard to the truth or falsity of the defamatory statement. Gertz v. Welch (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Troman v. Wood (1975), 62 Ill. 2d 184, 192-94; Restatement (Second) of Torts sec. 580B (1977).

Nor do I think we are required by any reason of State law or policy to extend the New York Times scienter standard to cases of purely private defamation. I agree with Justice Schaefer’s observation, in Troman v. Wood, that such a limitation on redress for injury to reputation would unduly subordinate the rights of the individual. Troman v. Wood (1975), 62 Ill. 2d 184, 195.

Here, moreover, the private defamation plaintiff’s right to recover is already limited by the common law doctrine of qualified privilege, sometimes also called conditional privilege:

“ ‘A privileged communication is one which, except for the occasion on which or the circumstances under which it is made, might be defamatory and actionable: 33 Am. Jur., p. 123. *** Where circumstances exist, or are reasonably believed by the defendant to exist, from which he has an interest or duty, or in good faith believes he has an interest or duty, to make a certain communication to another person having a corresponding interest or duty, and the defendant is so situated that he believes, in the discharge of his interest or duty or in the interests of society, that he should make the communication, and if he makes the communication in good faith, under those circumstances, believing the communication to be true, even though it may not be true, then the communication is qualifiedly or conditionally privileged, even though the defendant’s interest or duty be not necessarily a legal one but only moral or social and imperfect in character ***.’ ” Zeinfeld, v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 349, quoting Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 376-77.

The majority opinion notes, and plaintiff conceded before the appellate court, that defendant in this case had a qualified privilege in making the statements concerning plaintiff to the faculty committee. (89 Ill. 2d at 209; Colson v. Stieg (1980), 86 Ill. App. 3d 993, 997.) To overcome the privilege and hold the defendant hable, plaintiff would have to prove that the defendant did not believe the truth of the defamatory matter, or had no reasonable grounds to believe it true. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 350.) This accomodation, through the rules of privilege, of the interest in free expression and uninhibited exchange of information is built right into the common law, and I do not think that the United States Supreme Court’s decisions in this area render or were intended to render them nugatory. Indeed, since New York Times was announced, a number of jurisdictions have found statements made in precisely the factual context presented in this case — a faculty committee’s tenure evaluation meeting — to be conditionally privileged, and have denied recovery on that basis. Stevens, Evaluation of Faculty Competence as a “Privileged Occasion,” 4 J. Coll. & Univ. Law 281 (1977).

The majority opinion does not base its determination that the New York Times standard should apply to this case on a finding that the plaintiff here was a public figure, or that the subject of the statement was a “matter of public or general interest.” (The United States Supreme Court, in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811, flirted briefly with a rule that would have made the New York Times standard applicable whenever the defamatory statement concerned a matter of “general or public interest. ” This position was never adopted by a majority of the court, and was explicitly repudiated by the court in Gertz v. Welch (1974), 418 U.S. 323, 346, 41 L. Ed. 2d 789, 809, 94 S. Ct. 2997, 3010.) Rather, primary reliance is placed on the importance of the subject matter of the communication to the speaker and hearers. (89 Ill. 2d at 212.) The argument, if I understand it correctly, is that because of the '“interest and concern” and “need for * * * .information” of speaker and hearers (89 Ill. 2d at 213), their first amendment interests in free expression and uninhibited exchange of information become so urgent that the “actual malice” rule is required to prevent them from being curtailed by the threat of liability for defamation.

No opinion of the United States Supreme Court or this court provides a precedent for this rationale. Rather, as discussed above, the common interest or concern of speaker and hearers is the traditional basis for finding that a privilege to make a defamatory statement exists.

The United States Supreme Court in Gertz acknowledged the importance of reputational interests and the “strong and legitimate State interest in compensating private individuals for injury to reputation.” (418 U.S. 323, 348-49, 41 L. Ed. 2d 789, 810, 94 S. Ct. 2997, 3011.) Our State constitution provides that every individual is entitled to a remedy “for all injuries and wrongs which he receives to his person, privacy, property or reputation.” Ill. Const. (1970), art. I, sec. 12.

I think that defendant here had a qualified privilege under the rationale of Zeinfeld v. Hayes Freight Lines, Inc., and plaintiff need only allege and prove that the defendant publisher did not believe in the truth of the defamatory matter, or had no reasonable grounds for believing it to be true.

MORAN and SIMON, JJ., join in this special concurrence.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 54458.
    WILLIAM G. REXROAT et al., Appellees, v. RUSSELL THORELL, Appellant.

      Opinion filed January 21, 1982.
    Rehearing denied March 25, 1982.

      Eugene R. Wedoff, of Chicago (Jenner & Block, of counsel), for appellant.
    Daniel P. Nagan, of Macomb (Bisbee & Nagan, of counsel), for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This action involves a dispute over the right of the plaintiffs, William G. and Mary Ruth Rexroat, to use an old dirt roadway across land owned by the defendant, Russell Thorell, as a private right-of-way to gain access to some seven acres of plaintiffs’ farm. Plaintiffs filed a complaint in the circuit court of McDonough County seeking a declaratory judgment, injunctive relief and money damages. That complaint was dismissed by the trial court, which stated in a written opinion its reasons for doing so. The appellate court reversed and remanded (90 Ill. App. 3d 311), and we allowed defendant’s petition for leave to appeal.

The parties own adjoining farms in McDonough County. Plaintiffs purchased theirs in 1960 and 1961; defendant bought his property in 1968. Plaintiffs’ farm is directly west of and adjacent to the 80-acre tract owned by defendant. Three public highways form a “U” shape around both farms. The following rough diagram, adapted from defendant’s petition for leave to appeal, shows the relevant portions of the land and is helpful in understanding the physical arrangement.

In the northeast corner of plaintiffs’ farm is a tillable triangular-shaped piece of ground consisting of about seven acres. This portion of the farm is bounded on the northwesterly side by Spring Creek, on the east side by the common property line between the parties, and on the south by an old dirt road which at one time ran through the property now owned by defendant. A portion of the land south of the old road and east of Spring Creek was sold by plaintiffs, who reserved a 16-foot easement across the conveyed land for purposes of ingress and egress to the land, including the seven acres, retained by plaintiffs. That easement commenced at the south public highway midway between Spring Creek and the west boundary of defendant’s property, and ran almost due north to plaintiffs’ retained land.

The old road, according to the plaintiffs and as described by the trial court, “began approximately an eighth of a mile south of the northeast corner of defendant’s 80 acres and on the west line of the East Public Highway and *** then continued on westerly approximately an eighth of a mile and then in a generally southwesterly direction to the common boundary line between the farms owned by plaintiff[s] and defendant. The old road *** then proceeded westerly across plaintiffs’ land to Spring Creek and thence on westerly entirely across what is now plaintiffs’ land and then on northerly, westerly, southerly and back westerly until it connected up with the West Public Highway at a point about 1M miles due west of where the old road began at its eastern terminus over the East Public Highway.” Both parties have maintained fence gates at the points where the old road begins on their respective properties: at the east end of the old road where it begins on defendant’s property, a fence gate has existed since the time plaintiffs purchased their property in 1961, and some years prior thereto; at the point where the old road leaves defendant’s land and enters plaintiffs’ farm, a fence gate has also existed for an appreciable length of time, and after plaintiffs acquired their land they painted a “keep out” sign on their fence post directed at anyone coming from defendant’s land.

At the point where the old road crossed Spring Creek there was a ford; however, testimony indicated that the creek had substantially changed over the years, in that the banks are now much steeper and the creek much deeper. William Rexroat testified to unsuccessful attempts to drive a bulldozer and farm machinery across the creek where it intersects the old road to reach his seven acres. He also testified to unsuccessful attempts to reach the seven acres from the south public highway along the east side of Spring Creek. He and Wally Lundberg, plaintiffs’ immediate predecessor in title, testified that' there was a swamp in this area and the land frequently flooded in the spring.

No recorded document indicated the road existed. The portion which ran through defendant’s land had been used by the public for some years beginning in about 1913, but, as the trial court found, it had not been maintained since at least 1942 and had grown up in saplings and been obstructed by falling trees. The parties generally agreed that the portion of the road which did not run through defendant’s land, with the exception of a small portion at the west end, had been abandoned as a public road many years before they purchased their respective properties. The defendant testified that at the time he purchased his land, there was no visible indication that a road existed on it. However, both William Rexroat and Wally Lundberg testified that they used the road on several occasions. But Lundberg stated that the road was not in good condition in 1951 when he purchased his property, and plaintiff testified that he had to perform major work on the road by removing dead trees and logs and grading the road in order to make it passable. In addition, portions of the road periodically washed out to the extent that passage became blocked.

Plaintiffs based their claim for relief upon four possible theories: (1) that a private easement existed by way of necessity; (2) that a private easement existed by prescription; (3) that a public highway still existed, or, in the alternative, (4) if a public highway no longer existed, that a private easement of necessity arose following the abandonment of the road by the general public. The trial court held that a public highway had been created by user for more than 15 years (Ill. Rev. Stat. 1977, ch. 121, par. 2—202), but that it had been abandoned sometime in 1942 or 1943. Neither party challenges these findings on appeal. The court rejected the plaintiffs’ claim that an implied easement of necessity existed, because there was no evidence that the plaintiffs’ and defendant’s tracts had been part of one estate initially and subsequently severed as required to create such an easement. (See People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 270; Finn v. Williams (1941), 376 Ill. 95, 99.) The court also rejected plaintiffs’ claim that they had acquired an easement by prescription, finding that any use by plaintiffs and their predecessor in title, Wally Lundberg, was permissive — at least until 1968. Finally, the court held that a private easement did not arise following the abandonment of the public roadway because the judge found no support in Illinois law for this proposition. On rehearing, the court further stated that plaintiffs’ argument on the necessity of an implied easement was substantially diluted by the fact that William Rexroat testified he had retained an express easement for the purpose of reaching the seven-acre tract across land sold by plaintiffs. He stated he did so because of the “questionable nature” of his right to use the old road.

The appellate court reversed, holding that the abandonment of the public roadway under these facts created a private easement in the road benefiting plaintiffs’ land. In so holding, the court relied primarily upon several out-of-State decisions collected in an A.L.R. annotation. (See Annot., 150 A.L.R. 644 (1944).) The court rejected the claim that the possibility of alternative means of access should defeat plaintiffs’ right to an implied easement: “Under these circumstances the fact that alternative means of access may be possible, i.e., via construction of a bridge across Spring Creek or by developing a roadway running north along the east bank of Spring Creek from the public highway abutting the southern boundary of plaintiffs’ land, both costly and complicated procedures, does not alter our decision. The plaintiffs’ rights to an easement implied by law need not be based on absolute necessity.” 90 Ill. App. 3d 311, 315.

The only issue raised in this court is whether plaintiffs have acquired a private easement in the old road from reasonable necessity by virtue of its abandonment as a public highway several years prior to the time they purchased their land. Defendant urges reversal of the appellate court’s holding in part because plaintiffs failed to show reasonable necessity. Plaintiffs contend that the record supports their assertion that the cost of constructing an alternative means of access is prohibitive and that the appellate court’s finding that such procedures are both complicated and costly should be sustained.

The majority of courts considering a landowner’s rights following the vacation or abandonment of a public way have held that a private right-of-way which existed prior to the establishment of a public way survives the vacation or abandonment by the public. (See Annot., 150 A.L.R. 644, 645-46 (1944); cf. Thomas v. Metz (1928), 236 Ill. 86 (dicta sometimes cited as supporting plaintiffs’ position); see also 39 Am. Jur. 2d Highways, Streets, and Bridges § 185 n.17 (1968).) Moreover, many courts have held that a private easement arises in a public highway following its vacation or abandonment from the mere fact that the landowner’s property abuts thereon. (E.g., Knierim v. Leatherwood (Tenn. 1976), 542 S.W.2d 806, 810-11; Jackson v. Birmingham Foundry & Machine Co. (1908), 154 Ala. 464, 45 So. 660; Annot., 130 A.L.R. 657, 658 (1941).) Although title to the land vests in the owner of the fee, it is subject to the rights other landowners may have in the street as the necessary means of access to their property. (Greenberg v. L. I. Snodgrass Co. (1954), 161 Ohio St. 351, 361, 119 N.E.2d 292, 297; Taylor v. Cox (1951), 218 S.C. 488, 492, 63 S.E.2d 470, 472.) It is thus recognized that the only easements which survive or arise are those reasonably necessary for means of ingress and egress. Taylor v. Cox (1951), 218 S.C. 488, 63 S.E.2d 470; Jackson v. Birmingham Foundry & Machine Co. (1908), 154 Ala. 464, 45 So. 660; 39 Am. Jur. 2d Highways, Streets, and Bridges § 185 (1968); 39A C.J.S. Highways § 137 (1976).

The above principles are not directly applicable to the factual situation with which we are presented, as the appellate court noted, because there is no evidence that a private easement existed prior to the creation of the public way, and the old road does not abut the plaintiffs’ land but runs to and through it. Application of the cited rules is further complicated by the fact that the roadway at issue here was never publicly recorded in contrast to the overwhelming majority of out-of-State decisions. The record demonstrates that the road fell into a state of disrepair following its abandonment by the public, and it became impassable until later efforts were made to clear it. Such a situation may well present the question whether the owner of the servient tract had either actual or constructive notice of the possibility of a claimed easement over his land. Without that notice, of course, he ordinarily takes title free from the burden of the easement. (See Willoughby v. Lawrence (1886), 116 Ill. 11, 20; 25 Am. Jur. 2d Easements and Licenses § 97 (1966).) In this case, whether the condition of the land was such as to give defendant reasonable notice of the roadway was sharply disputed, and the trial court did not make a specific finding on this issue. We need not remand on this question, however, since we believe that plaintiffs failed to sustain their burden of showing necessity.

Plaintiffs purchased their land some 18 years following the abandonment of the old road by the general public. If a private easement existed at the time plaintiffs acquired this land, it arose in the early 1940’s when the trial court found that the old road was abandoned by the public. Since none of plaintiffs’ predecessors in title sought to enforce such a right, it was incumbent upon the plaintiffs, whose burden it is to show facts necessary to create an easement by implication (Traylor v. Parkinson (1934), 355 Ill. 476, 479; Bontz v. Stear (1918), 285 Ill. 599, 604), to prove that the circumstances were such that at the time the public road was abandoned a private easement arose. If the necessity to use this road to gain access to the seven-acre portion of their farm arose because of changed conditions upon the plaintiffs’ land, 'as the record would indicate, their claim must fail.

In VanPatten v. Loof (1932), 349 Ill. 483, the court considered whether an easement existed from necessity over the appellee’s land in favor of the appellant, whose only other means of ingress and egress to his property was by means of a navigable body of water. The court determined that in 1885, several years prior to the litigation, which was the year the estate was severed, the appellant’s land was best suited for lake excursions and as such there was no need for an easement over appellee’s land. Thus, the court concluded:

“No matter how much conditions may have changed since the time [appellant] got his deed, no implication of a grant of easement can ever arise from such changed conditions. The implication, if any, must have been contemporaneous with the execution of the deed.” (349 Ill. 483, 487.)

(See also Restatement of Property § 474, comment a (1944) (implication arises upon severance)); People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 271; Deisenroth v. Dodge (1955), 7 Ill. 2d 340, 346; Walker v. Witt (1954), 4 Ill. 2d 16, 20.) So, too, the implication in this case must have arisen, if at all, at the time of the abandonment of the old road by the general public.

While a showing of absolute necessity is not required in Illinois to create an implied easement of necessity upon the severance of land into two or more tracts (People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 271), an easement by implication is not sanctioned if available alternatives affording reasonable means of ingress and egress exist (Traylor v. Parkinson (1934), 355 Ill. 476, 481; VanPatten v. Loof (1932), 349 Ill. 483; H. Tiffany, Real Property § 794, at 293-96 (3d ed. 1939)). Although plaintiffs presented some evidence tending to establish that it would have been costly at the time of trial in 1978 to construct a road along the east side of Spring Creek running northward from the south public highway (William Rexroat estimated that it would cost $2,000 to $3,000), or to ford the creek at the point where it intersects the old road (Rexroat estimated that it would initially cost $300 to $400 and then the channel of the creek could wash out that effort), there was no evidence presented as to the unavailability of alternative routes at the time the road was abandoned by the public. Indeed, one witness testified that in 1937 the ford in the creek provided good access but that the creek had substantially changed over the years. Moreover, even the evidence presented by the plaintiffs as to the cost and effort necessary to provide an alternative means of access from their own land was disputed by defendant, who stated that the cost and effort in fording the creek was minimal, and the trial court, while not directly deciding the question, appears to have resolved this issue against the plaintiffs. We thus hold that plaintiffs failed to establish that the use of the old roadway at the time of the public abandonment was essential to the beneficial enjoyment of the land now owned by the plaintiffs, and, therefore, a private easement did not then arise and does not now exist.

The appellate court judgment is accordingly reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE CLARK

text:
    (No. 54454.
    HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Appellee, v. KAREN ZARKIN et al. (Karen Zarkin et al., Appellants; Devon National Bank, Appellee).

      Opinion filed January 21, 1982.
    Rehearing denied March 25, 1982.

      SIMON, J., took no part.
    Robert E. Senechalle, Jr., of Senechalle & Murray, P.C., and Marshall A. Levin, both of Chicago, for appellant.
    Ernest D. Simon, of Greenbaum & Browne, of Chicago, for appellee Devon Bank.
   JUSTICE CLARK

delivered the opinion of the court:

The facts of this case are stated in detail in the opinion of the appellate court. (90 Ill. App. 3d 1002.) Briefly, in March 1976 Karen and Leon Zarkin (appellants) created a conventional Illinois land trust of their residence property in Chicago with Devon National Bank (appellee) as trustee and themselves as beneficiaries. Devon, as trustee, at the Zarkins’ direction, executed a first mortgage of the trust property with Home Federal Savings and Loan Association as mortgagee.

Some time later, the Zarkins ran into financial difficulties. From May 1977 on, they made no payments to Home Federal on the first mortgage. In August 1977, they borrowed $14,000 from Devon. This, however, was insufficient to alleviate their financial plight. They were unable to repay the loan from Devon when it came due in November 1977. At this point, with their loan in default, the Zarkins assigned their beneficial interest in the land trust, of which Devon was trustee, to Devon to secure the repayment of the $14,000 loan.

In December 1977 Home Federal sued Devon, as land trustee, and the Zarkins in the circuit court of Cook County to foreclose its first mortgage. Devon, in its answer, alleged the debt due it from the Zarkins and the assignment to it of their beneficial interest. On June 8, 1978, the circuit court entered a decree of foreclosure. The decree found the mortgagee entitled to $63,254.50, and Devon entitled to alien in the amount of $14,626.25, subordinate to Home Federal’s mortgage lien. The property was ordered sold and the redemption period determined.

At the sheriff’s sale on July 13, 1978, Home Federal bid in the property for the amount of its judgment plus certain costs. Devon did not bid at the sale. However, on January 5, 1979, eight days before the expiration of the redemption period, Devon, without notifying the Zarkins, purchased the certificate of sale from Home Federal.

Immediately upon learning of this action, the Zarkins filed a petition in the circuit court. It asserted that Devon’s purchase of the certificate of sale from Home Federal amounted to a redemption of the property from the foreclosure sale, and that as a result the redemption period had been terminated. It further asserted that Devon’s action was a breach of its fiduciary duty as trustee, and requested the circuit court either to set aside the sale to Devon and extend the redemption period to enable them to redeem, or to decree that Devon had redeemed as trustee for the Zarkins’ benefit, and enjoin Devon from taking any further action with respect to the property. The circuit judge denied the petition, and the Zarkins appealed. On November 26, 1980, the appellate court, with one justice dissenting, affirmed the judgment of the circuit court. 90 Ill. App. 3d 1002.

The question presented by this appeal is: What is the effect of a land trustee’s purchase, after the foreclosure sale but during the redemption period, of the certificate of sale covering trust property that was sold under a decree of foreclosure?

Devon asserts that it owns the property, having purchased the certificate in its individual capacity and not as trustee. It was entitled to do so, it contends, because as a creditor of the Zarkins it was entitled to protect the collateral securing its debt. Devon further contends that, under the trust agreement, it had no duty to redeem as trustee for the Zarkins, and indeed that it could not legally have done so without their authorization. Finally, Devon argues that even if its purchase were viewed as a redemption from foreclosure by a junior lienor, the Zarkins suffered no harm, since Devon’s redemption did not affect the Zarkins’ right as mortgagors to redeem during the remainder of the period and obtain the certificate from Devon or whoever was holding it at the time.

The Zarkins insist to the contrary that Devon could not become owner of the property in its individual capacity. By purchasing the certificate of sale, they contend, Devon purchased its own trust property, in breach of its fiduciary duty of loyalty. The Zarkins rely on the propo- • sition that a trustee’s duty to administer- the trust with complete loyalty to the interests of the beneficiary precludes it from dealing with the trust property for its individual advantage or profit, or from purchasing trust property in circumstances such as are presented here.

This court has dealt with Illinois land trusts on only a few occasions. For the most part, the cases which have arisen have involved the nature of the interests held by beneficiary and trustee, and the legal consequences of the paradoxical characterization of the beneficiary’s interest as personal property, although the subject of the trust is realty. (Horney v. Hayes (1957), 11 Ill. 2d 178; Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535; People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479.) A brief description of the conventional land trust arrangement can be found in our recent opinion in People v. Chicago Title & Trust Co., and lengthier discussions in H. Kenoe, Kenoe on Land Trusts (Ill. Inst. Cont’g Legal Educ. 1981), and in Turner, Some Legal Aspects of Beneficial Interests under Illinois Land Trusts, 39 Ill. L. Rev. 216 (1945).

The Illinois land trust represents an adaptation of the trust device to achieve ends not usually associated with the “traditional” private express trust. (Garrett, Land Trusts, 1955 U. Ill. L.F. 655, 659-62.) The history of trust law contains many such adaptations of the ancient form to new uses. The trust’s extraordinary flexibility permits variations as diverse as the voting trust, the Massachusetts business trust, the real estate investment trust, and the Illinois land trust. (Hanley v. Kusper (1975), 61 Ill. 2d 452, 461; Schumann-Heink v. Folsom (1927), 328 Ill. 321, 325-27.) As different as are their purposes, however, all these trusts have a common feature: each has a trustee (or trustees) and each has beneficiaries. We consider that, at least as to matters touching this relationship — which is, after all, the core of a trust — land trusts are to be treated no differently from any other trust. As the court observed in the Schumann-Heink case, in holding that general trust-law principles applied to a case involving a Massachusetts business trust: “Because a new use is being made of the trust does not mean new principles of law are to be applied in determining the rights of the trustees, the cestuis que trust or persons dealing with the trustees.” (328 Ill. 321, 327.) Land trustees in Illinois, therefore, are subject to the fiduciary duties imposed by the law on all trustees; and the general principles of trust law regarding these duties govern the decision of this case.

It has been suggested that since the land trustee’s powers are limited, under the typical land trust agreement, to acting only when and as the beneficiary directs, the trustee has no duties other than those specified by the trust agreement. We cannot agree. The fiduciary obligation of loyalty flows not from the trust instrument but from the relationship of trustee and beneficiary. The essence of this relationship is that the former is charged with equitable duties toward the latter. The law imposes the duty, whether the trust instrument mentions it or not. 2 A. Scott, Trusts secs. 170, 164 (3d ed. 1967); Restatement (Second) of Trusts sec. 164, comment h (1959).

The trustee’s duty to serve the interests of the beneficiary with complete loyalty, excluding all self-interest, prohibits him from dealing with the trust property for his individual benefit. (Central Standard Insurance Co. v. Gardner (1959), 17 Ill. 2d 220, 235; G. Bogert, Trusts sec. 543 (2d ed. 1978).) The purchase by a trustee for his own account of property of his trust is a breach of this duty. (Victor v. Hillebrecht (1950), 405 Ill. 264, 268; Bennett v. Weber (1926), 323 Ill. 283, 293-94; Winger v. Chicago City Bank & Trust Co. (1945), 325 Ill. App. 459, 472-75; G. Bogert, Trusts sec. 543(A) (2d ed. 1978).) The reason for the prohibition on trustees’ purchases of trust property is that a trustee in this position would find it in his own best interest to violate his duty to his beneficiary: as purchaser, the trustee is naturally interested in acquiring the property at the lowest possible price, while loyalty to the beneficiary dictates that he seek to obtain the highest possible price. The policy of the rule is to remove the danger created by the conflict of interests by making purchases of trust property by trustees voidable at the beneficiary’s option, thus removing the temptation to trustees to engage in them. Bennett v. Weber (1926), 323 Ill. 283, 294; Winger v. Chicago City Bank & Trust Co. (1945), 325 Ill. App. 459, 473-74; 2 A. Scott, Trusts sec. 170.4 at 1309 (3d ed. 1967); G. Bogert, Trusts sec. 543(A), at 222 (2d ed. 1978).

The trustee may not purchase trust property in a private transaction, or, under the prevailing view, at a public auction or foreclosure or other judicial sale that was brought about by the trustee. The majority of jurisdictions hold that the prohibition extends to purchases at a sale held on foreclosure of a third party’s lien. (2 A. Scott, Trusts secs. 170.1 to 170.7 (3d ed. 1967); G. Bogert, Trusts sec. 543(C), at 247 (2d ed. 1978).) The reason is that even when the trustee does not conduct the sale and had no hand in bringing it about, if he is allowed to purchase for his own account, self-interest might tempt him to try — directly or indirectly — to keep the price down. (2 A. Scott, Trusts sec. 170.5, at 1311 (3d ed. 1967).) See also City of Chicago v. Hart Building Corp. (1969), 116 Ill. App. 2d 39 (receiver violated fiduciary duty when he acquired title to receivership property by buying, through nominees, agents, and land trusts, at foreclosure sales after paying mortgagor not to attend sales and acquiring interest of mortgagee who was successful bidder at sale). A minority of jurisdictions allow the trustee to bid for and acquire trust property at a public foreclosure sale initiated by a third party, if the sale was fairly conducted. G. Bogert, Trusts sec. 543(C), at 247 (2d ed. 1978).

Several jurisdictions have recognized exceptions to the general rule and permitted a trustee’s purchase of trust property to stand where under the circumstances of the case the reason for the prohibition ceased to exist (for example, where there is no possibility of advantage to the trustee, or the purchase is necessary to protect the interest of the beneficiary). (76 Am. Jur. 2d Trusts sec. 463 (1975); 3 J. Pomeroy, Equity Jurisprudence sec. 958(b) (5th ed. 1941).) Victor v. Hillebrecht (1950), 405 Ill. 264, on which the appellate court relied in holding that Devon did not breach its duty to the Zar kins when it purchased the certificate of sale from Home Federal, was such an exceptional case. Hillebrecht, who was trust manager of a liquidation trust set up following a court-ordered reorganization of an apartment hotel, bought participation certificates representing an interest in the trust. A number of factors appear to have influenced the court’s decision that this was not a breach of his fiduciary duty. In the first place, the trust agreement authorized trust managers to own participation certificates. (Indeed, Hillebrecht, originally a bondholder of the bankrupt hotel company, had received some of his participation certificates in exchange for his bonds under the reorganization plan.) In addition, a main consideration appears to have been Hillebrecht’s inability to control the circumstances of the sale of the participation certificates or their price. The certificates were actively traded on the open market; Hillebrecht did not solicit or induce the other beneficiaries to sell, but bought on the open market through a broker; the price paid was the prevailing price of publicly traded certificates. The facts of the case are in marked contrast to those in the case at bar. Here Devon approached Home Federal and offered to buy the certificate of sale in a private transaction at a price proposed by it. Home Federal could not know whether the mortgagors were redeeming, in which case it would have no right to resist a tender by Devon of the amount it had paid for the property at the foreclosure sale. In effect, Devon controlled the terms of the transaction.

We do not think Victor can or should be held to validate Devon’s action in this case. It certainly cannot be interpreted as holding that Illinois has adopted the minority position approving trustees’ purchases at a third party’s foreclosure sale.

Devon, however, urges that its purchase of the certificate of sale falls within another exception to the general rule, mentioned in Victor: that it is not a breach of the duty of loyalty for a trustee who has an individual interest in the trust property to purchase at a forced sale in order to protect its interest. (Victor v. Hillebrecht (1950), 405 Ill. 264, 270, quoting Froneberger v. Lewis (1878), 79 N.C. 426.) Devon contends that it was entitled to purchase the trust property to protect its interest as a secured party under the collateral assignment of the Zarkins’ beneficial interest. We have found no case holding a trustee’s purchase valid on facts similar to the facts in this case. Though there have been cases in which courts have declined to strike down a fiduciary’s purchase at another’s foreclosure sale, most of them have involved executors or administrators who were also joint beneficiaries of the estate of the decedent. (G. Bogert, Trusts sec. 543(C), at 253 (2d ed. 1978); 76 Am. Jur. 2d Trusts sec. 464 (1975).) In other cases it appeared that the purchase had been agreed to or otherwise ratified by the beneficiaries (Swineford v. Virginia Trust Co. (1930), 154 Va. 751, 152 S.E. 350; Barnes v. Lyles (1918), 110 S.C. 465, 96 S.E. 723) or had been approved by the court (Corbin v. Baker (1901), 167 N.Y. 128, 60 N.E. 332). On the other hand, several decisions have held that a trustee who was interested in the trust property as a creditor could not acquire title to the property free of trust by purchasing at a third party’s foreclosure sale. Pearson v. Pearson (1946), 227 N.C. 31, 40 S.E.2d 477; Hamilton v. Dooly (1897), 15 Utah 280, 49 P. 769; In re Standard Commercial Tobacco Co. (D.N.Y. 1940), 34 F. Supp. 304.

We think the latter rule is the correct one. The situation is comparable to that of a trustee who purchases in his own name an outstanding encumbrance on the trust property, or acquires a title adverse to the beneficiary’s. In these cases the trustee’s action constitutes a breach of tmst, and he is deemed to hold the encumbrance for the benefit of the trust. The trustee is not permitted to foreclose the. encumbrance against the trust property or to derive any profit from the transaction. Earll v. Picken (D.C. App. 1940), 113 F.2d 150, 155-57; G. Bogert, Trusts sec. 543(D) (2d ed. 1978); 90 C.J.S. Trusts sec. 249 (1955).

The fact that Devon had an individual security interest in the trust property, by agreement with the Zarkins, could not affect its duty of loyalty to them. Beneficiaries who serve as trustees have a duty of loyalty to their co-beneficiaries, despite their individual interest in the trust, and are not permitted to use their fiduciary capacity to advance their own interests at the expense of their co-beneficiaries. (90 C.J.S. Trusts sec. 248, at 253 (1955).) Similarly, trustees who acquire an individual interest in the trust property by becoming creditors — whether by making advances for the benefit of the trust, or by buying an encumbrance on the trust property — may have an equitable lien on the trust for reimbursement, but are not relieved of their fiduciary obligations. (Earll v. Picken (D.C. App. 1940), 113 F.2d 150, 156; Hamilton v. Dooly (1897), 15 Utah 280, 305, 49 P. 769, 777.) The trustee-creditor cannot indemnify himself by treating trust property as his own (Bennett v. Weber (1926), 323 Ill. 283, 294), nor can he transfer trust property to himself in satisfaction of a debt owed him by the trust (Electronic Development Co. v. Robson (1947), 148 Neb. 526, 28 N.W.2d 130).

Devon’s fiduciary duty of loyalty would have precluded it from purchasing the trust property for its own account by bidding it in at Home Federal’s sale. We hold that that duty likewise prohibited Devon from later acquiring the certificate of sale from Home Federal in a private transaction. Regardless of any good-faith belief that its action was justified, Devon’s purchase of the certificate was not consistent with a trustee’s obligation not to deal with trust property for its individual advantage. In re Will of Gleeson (1955), 5 Ill. App. 2d 61, 64-65; Hamilton v. Dooly (1897), 15 Utah 280, 298-99, 49 P. 769, 774-75.

There is sound reason in policy for holding land trustees in Devon’s position to a strict standard of loyalty. It is to prevent trustees from taking personal advantage of their position that the duty of loyalty is imposed. (Winger v. Chicago City Bank & Trust Co. (1945), 325 Ill. App. 459, 473-74.) A land trustee by virtue of its position is likely to have information concerning the trust property and, more to the point, knowledge of the financial circumstances of its beneficiaries — whether, for instance, they are likely to redeem from foreclosure. A trustee that becomes a creditor of its beneficiary is particularly susceptible to the temptation to prefer its own financial interests over the interests of the beneficiary. We find the reason for the rule here in full force.

Where a trustee has purchased trust property in breach of the duty of loyalty, the beneficiary has several possible alternative remedies. If the trustee has not resold the property, he can be compelled to reconvey to the trust and to account for any income received from the property; or he can be ordered to offer the property for sale, and if it is sold for more than the amount the trustee paid for it, the trustee will be accountable for the excess; or, if the trustee has purchased the property below its actual value, he may be allowed to keep it but required to pay the beneficiary the difference between the value at the time of purchase and the amount he paid for it. Whichever course is followed, the trustee is entitled to receive the consideration he paid for the property, with interest. (2 A. Scott, Trusts sec. 170.2 (3d ed. 1967); Winger v. Chicago City Bank & Trust Co. (1945), 325 Ill. App. 459, 475.) Devon, therefore, will be entitled to an equitable lien on the property for the amount it paid Home Federal, plus interest, the satisfaction of which is a condition of reconveying to the trust; or, if the property is resold, Devon is entitled to have its lien satisfied from the proceeds. Bennett v. Weber (1926), 323 Ill. 283, 294-95.

Whether the beneficiary has suffered a loss as the result of the fiduciary’s disloyal act is irrelevant to the former’s right to have the transaction set aside and recover any profit made. (Winger v. Chicago City Bank & Trust Co. (1945), 325 Ill. App. 459, 474; In re Will of Gleeson (1955), 5 Ill. App. 2d 61, 65.) Consequently, it is not necessary for us to determine whether the Zarkins had a right of redemption or whether that right was affected by Devon’s purchase of the certificate.

Finally, there is the matter of Devon’s claim against the Zarkins for the $14,000 loan which they did not repay, and for which Devon later took the assignment of their beneficial interest as security. Fiduciaries are not prohibited from having such direct dealings with their beneficiaries, but such transactions are subject to special scrutiny by the courts, and the burden is on the fiduciary to show that the transaction was fair. (McFail v. Braden (1960), 19 Ill. 2d 108, 117-18; G. Bogert, Trusts sec. 544 (2d ed. 1978).) A beneficiary can consent to a transaction that the duty of loyalty would otherwise prevent a trustee from undertaking, provided that the consent is given voluntarily after full disclosure by the trustees of all facts, and there is no overreaching. (G. Bogert, Trusts sec. 543(U), at 382 (2d ed. 1978).) As we have already noted, Devon’s duty of loyalty would preclude its acquiring an interest in the trust adverse to that of the Zarkins, and we think the rule extends to the acquisition of a lien on their beneficial interest. The record does not "disclose the circumstances either of the loan or of the subsequent assignment to Devon of the Zarkins’ beneficial interest. Unless Devon carries its burden of proving the fairness of these transactions, the disclosure to the Zarkins of the conflict of interests, and the Zarkins’ consent, they will be set aside. If, however, Devon is able to make this showing, then its claim will be allowed, together with such interest as the circuit court deems just.

The judgment of the appellate court affirming the circuit court’s judgment is reversed; the circuit court is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.

Reversed and remanded.

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


author: JUSTICE UNDERWOOD JUSTICE MORAN,

text:
    (No. 54243.

      In re ARTHUR H. GRANT, Attorney, Respondent.

      Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

    MORAN, J., dissenting.
    Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.

      William J. Harte, of William J. Harte, Ltd., of Chicago (David J. Walker, of counsel), for respondent.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In these consolidated disciplinary proceedings the Review Board of the Attorney Registration and Disciplinary Commission has recommended that respondent, Arthur H. Grant, be suspended from the practice of law for a period of three years and until further order of the court. The matter is before us on respondent’s exceptions to that recommendation.

Separate complaints were filed by the Administrator and heard by separate panels. The first complaint, filed on December 19, 1978, charged respondent in separate counts with the commingling and wrongful conversion of client funds belonging to Edward A. Washington and Leroy Brawner and a failure to promptly pay to them monies to which they were entitled, all in violation of Canon 9 DR 9 — 102(B)(4) and Canon 1 DR 1 — 102(A)(4) of the Illinois Code of Professional Responsibility as approved and adopted by the Illinois State Bar Association (1977). (See 84 Ill. 2d Rules 9—102(c)(4), 1—102(a)(4).) A subsequent amendment added a count containing similar allegations as to funds belonging to Leroy Jackson. The second complaint, filed in March 1980, charged conversion of the funds of Herbert Brock, Annie Bright and Arvilla Donald.

Respondent was admitted to practice in Illinois in 1954. The complaints arise from his handling of money received as settlement of four separate cases during 1977-78. Respondent maintained several bank accounts in different banks during this period. Some of the accounts were designated trust accounts; however, he used all of them for personal and business purposes as well as for clients’ funds. Bank statements indicate that several of these accounts, among them those in which complainants’ funds were placed, were overdrawn on several occasions.

In June 1977, respondent received a check in settlement of Edward Washington’s personal injury claim and deposited it in a “trust account.” In September, respondent issued a check for $980.67 to his client, which represented his share. That check was returned due to insufficient funds. Later that month respondent issued a replacement check drawn upon a different bank which was honored upon presentation. The “trust account,” which was also used by respondent for his personal and business expenses, had been overdrawn several times between the end of July and the end of September.

In September 1977 respondent received a check in settlement of a personal injury claim he had filed on behalf of Leroy Brawner. He had his client endorse the draft on September 22 and told him he would receive his money in about two weeks. The client testified that in mid-November he made several calls and one trip to respondent’s office but never was able to talk to or see respondent. On December 1, respondent cashed the check. Mr. Brawner testified that he talked to respondent in December about the check and was told that the check had not cleared. Respondent denies that this conversation occurred. On January 9, 1978, the client filed a disciplinary complaint. Respondent’s secretary testified that in January and February she made several unsuccessful attempts to contact Mr. Brawner, and that on March 7 the client’s money was paid in cash at respondent’s office from money taken from an envelope in the client’s file. Respondent testified that for a time that file could not be found but the cash had been in it since December. He also testified that the client had expressed a preference for being paid in cash.

Around November 5,1978, respondent received a check in settlement of a claim filed on behalf of Leroy Jackson. Mr. Jackson endorsed the draft and respondent deposited it in a “trust account.” This account was also used by respondent for business and personal expenses as well as to cover overdrafts from another account. Because of his inability to obtain his money from respondent, Mr. Jackson retained another attorney to represent him in his collection efforts and to pursue another matter for which respondent had previously been engaged. Respondent claimed that his client owed him for services on the other case and that negotiations broke down when the client’s new attorney refused to accept the check less those fees. The client filed a complaint with the Commission in December 1978, and, on advice of counsel, respondent sent the settlement funds in the amount of $4,600 to Mr. Jackson the following June, withholding only “out-of-pocket expenses and fees” in connection with the settled claim. The balance of the account in which these funds had been held had on several occasions between November 1977 and June 1979 fallen below the amount owed Mr. Jackson.

In April 1977, respondent received checks in settlement of accident claims filed on behalf of Annie Bright, Arvilla Donald, and Herbert Brock. These checks were endorsed by respondent through a power of attorney and cashed by him on July 10. In April 1978, Herbert Brock learned from the insurance company that the case had been settled and called respondent about the money. Respondent issued him a check for $783.28, which was returned because of insufficient funds. A replacement check was issued immediately and honored. In December, respondent was contacted by Mrs. Walton, a Chicago relative of out-of-State clients Annie Bright and Arvilla Donald. Mrs. Walton complained that the clients had not been paid, and was told by respondent that he would mail them a check. Subsequently Mrs. Walton complained to the Chicago Bar Association, a representative of which wrote to respondent but received no response, and the matter was referred to the Commission. After the complaint was filed, respondent paid the clients, through Mrs. Walton, their shares of the settlement, $101 each. Respondent testified, and supported by affidavit filed after the hearing, that a former secretary had been given cash to purchase money orders for these clients but that she failed to do so and instead converted the money to her own use and hid the files.

Six attorneys, including past and present presidents of the Cook-County Bar Association, testified as to respondent’s long involvement in community activities and pro bono work for indigents. That testimony also established that respondent had received from the Cook County Bar Association its Westbrook award, which was one of four awards given annually to its outstanding members.

The panel which heard the complaint concerning the transactions with Washington, Brawner, and Jackson found that respondent had improperly commingled funds and, with respect to Washington and Jackson, had committed a “technical conversion” when the balance of the trust accounts fell below the amount owed these clients. The panel found “no evidence of dishonest motive” and noted that “respondent’s difficulties [arose] from extremely sloppy bookkeeping practices and a failure to properly communicate with clients The panel noted the testimony of the character witnesses earlier referred to and recommended respondent’s censure.

The panel hearing the complaint concerning Bright, Donald and Brock did so some nine months after the first hearing. Respondent was served with the complaint on April 7, 1980, but failed to answer or in any way respond thereto prior to the hearing, although he had earlier responded to a letter of the Commission in August 1979, by enclosing a letter from Mrs. Walton, dated August 16, 1979, stating that she had received payment from respondent and requesting that the complaint be dismissed. Respondent appeared at the hearing without counsel and requested a continuance so that he might be represented. Since it appeared that respondent had not contacted his attorney until just a few days before the hearing, the panel denied this motion and ruled that the allegations of the complaint be deemed admitted because of the failure to answer. Respondent testified in his own behalf but presented no character witnesses as he had in the former hearing. This panel found that respondent’s acts constituted conversion of clients’ funds in violation of DR 9 — 102(B) (4) of the Illinois Code of Professional Responsibility (Illinois State Bar Association 1977), which conduct was “unethical, unprofessional and tends to bring the courts and the legal profession into disrepute.” It was recommended that he be suspended for three years and until further order of the court.

The Review Board majority, emphasizing that far more occurred here than just the “technical commingling and a technical conversion of the client’s funds” as the panel hearing the matters concerning Edward A. Washington et al. characterized the conduct in that proceeding, stated that it was “only with great reluctance” that it recommended the three years’ suspension rather than the disbarment which two members of the Board considered appropriate. It, aptly described what occurred here:

“In each of the cases, funds of the client were not delivered to the client when they should have been or when they were requested. In each of the cases, the funds were, in fact, put to the attorney’s own use so that when asked he was unable to comply with his client’s demands to pay over funds rightfully due the client.
Furthermore, in our review, the record clearly establishes that these are not isolated examples of missed communications. and oversights but, rather, represent an established standard of practice engaged in by the Respondent. That his conduct clearly violates Canon D.R. 9 — 102(A)(2), (B)(4) is beyond dispute. Nor can it be disputed that the conduct of the Respondent is the type calculated to bring disrepute upon the law and the profession.
The loose, careless and dilatory practices followed by the Respondent in the handling of an accounting for, or more accurately, the failure to account for funds entrusted to him is clearly an abuse of the privilege secured to him by his license ***.”

Given the frequency with which this court has emphatically and unequivocally condemned the commingling of clients’ funds with the attorney’s own (e.g., In re Clayter (1980), 78 Ill. 2d 276, 278-79. See also, In re Schlax (1980), 81 Ill. 2d 66; In re Brody (1976), 65 Ill. 2d 152; In re Sherman (1975), 60 Ill. 2d 590; In re Bloom (1968), 39 Ill. 2d 250; In re Lingle (1963), 27 Ill. 2d 459), it seems incredible that the practice persists. As was pointed out in Clayter (78 Ill. 2d 276, 281), commingling is frequently the first step toward conversion. Too, in case of death or insolvency of the lawyer, client funds commingled with his own may well become assets of the lawyer’s estate, relegating the rightful owner of the funds to the status of a general creditor. The hazards involved in commingling, coupled with the actual conversion of funds occurring here, render explanations such as “poor bookkeeping,” “failure to fully understand the duty” and “no dishonest motive” completely unacceptable.

During 1977 and 1978 bank statements indicate that the accounts used by respondent for clients’ funds were overdrawn on numerous occasions. Twice respondent gave checks to clients which were returned due to insufficient funds. Several times payments to clients were inexplicably and inexcusably delayed — six weeks elapsed between the time Washington endorsed his check and respondent issued a check which was returned for insufficient funds, and 10 months elapsed between the time respondent received Brock’s settlement check and respondent issued a check which was also returned because of insufficient funds. Leroy Brawner secured payment of his settlement proceeds only after some 15 months’ delay and a complaint to the Commission; Leroy Jackson was paid his workers’ compensation settlement only after employing counsel to collect from respondent. More than 1/2 years’ delay intervened between receipt by respondent of the settlement drafts for Annie Bright and Arvilla Donald and his payment to them. Respondent ignored calls and letters from his clients and the Chicago Bar Association, and he failed to answer the complaint in the Brock inquiry. Carelessness, sloppy bookkeeping, overwork, or poor staff cannot excuse this type of conduct; rather, these factors, even where no dishonest motives exist, tend to bring the entire profession into disrepute.

Respondent concedes that he has commingled funds and has “technically” converted clients’ funds, but he urges that because of his previously unblemished record, his strong character references, and his significant history of community service and pro bono work, a sanction of three years’ suspension is too harsh a penalty, particularly since neither hearing panel found dishonest motives and all clients were paid what was due them.

A determination that the conduct which occurred here requires discipline is considerably less difficult than the determination of the nature and extent of that discipline. Our cases involving commingling or commingling and conversion reveal disciplinary action ranging from disbarment (In re Snitoff (1972), 53 Ill. 2d 50; In re Lingle (1963), 27 Ill. 2d 459) to censure (In re Clayter (1980), 78 Ill. 2d 276), depending upon the circumstances of the individual case. Considering our obligation to protect the public and insure the integrity of the profession (In re Snitoff) in light of the evidence establishing a pattern of repeated commingling and conversion of funds, we believe suspension for two years is appropriate. We do not consider necessary, however, the additional provision recommended by the board that suspension continue until our further order, a condition generally reserved for those situations where the disciplined attorney is emotionally unstable. In re O’Hallaren (1976), 64 Ill. 2d 426, 434.

Respondent suspended.

JUSTICE MORAN,

dissenting:

In attorney disciplinary cases, this court has consistently reiterated the statement made in In re Andros (1976), 64 Ill. 2d 419, 425-26: “While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.” Although this court has held that the doctrine of stare decisis cannot be applied to the specific discipline meted out in any particular case (In re Nesselson (1966), 35 Ill. 2d 454, 461), I fear that, too often, principles of uniformity are unduly minimized. Certainly the circumstances of each case should be taken into account. However, it is imperative that consistency be established to assure imposition of like sanctions under similar circumstances. For, as this court has also stated: “ ‘*** The courts must not exercise their supervisory control [over the legal profession] in an arbitrary manner, but must show a legal discretion in the exercise thereof. [Citation.] ’ ” In re Alswang (1978), 71 Ill. 2d 203, 209, quoting In re Donaghy (1948), 402 Ill. 120, 123.

A review of this court’s decisions in disciplinary cases demonstrates a lack of consistency in the sanctions imposed. Cases involving apparently similar misconduct have resulted in sanctions ranging from censure to disbarment.

For example, in In re Clayter (1980), 78 Ill. 2d 276, an attorney commingled and converted $1,000 that he held as earnest money for the parties to a real estate transaction. The court considered a number of mitigating circumstances and concluded that censure would be an appropriate sanction. Yet, in In re Agin (1970), 45 Ill. 2d 126, where the attorney settled a personal injury claim and failed to remit the proceeds to his client until demanded, the court ordered him suspended for one year. Although the court considered mitigating circumstances, it determined that respondent’s misconduct warranted stem discipline.

In In re Melin (1951), 410 Ill. 332, the attorney converted and commingled funds from two estates, and was " grossly negligent in the performance of his duties. Noting only the attorney’s good reputation, the court ordered that he be censured and suspended from the practice of law for three months. Similarly, in In re Borchardt (1934), 357 Ill. 458, the attorney commingled and converted the funds from two estates, yet he was suspended for two years and until such time as complete restitution was made. This sanction was imposed despite the court’s consideration of numerous mitigating factors, such as the attorney’s long and honorable career at the bar, the fact that he intended to make complete restitution, and his candor in admitting the wrong committed.

In In re Callas (1980), 82 Ill. 2d 6, an attorney, in his capacity as head of the corporate tmst department of a bank, authorized a $25,000 advance to a corporation that furnished computer services to the bank. At the time of the loan, the attorney was personally indebted to the corporation for that $25,000 amount. Respondent pleaded guilty to Federal charges of embezzlement and conversion. This court found that the misapplication and conversion of $25,000 was a serious violation of important professional responsibilities with which respondent had been entrusted. The court did not discuss factors mitigating the misconduct, and suspended the attorney for nine months. Yet, in In re Patt (1980), 81 Ill. 2d 447, an attorney was convicted of the Federal offense of embezzlement. This court stated, “The embezzlement or conversion of a client’s funds is an act involving moral turpitude and is a gross violation of the attorney’s oath which warrants disbarment in the absence of mitigating circumstances.” (81 Ill. 2d 447, 453, citing In re Stillo (1977), 68 Ill. 2d 49, 54.) The court noted that because respondent offered no evidence before the Hearing Board, the record disclosed no facts sufficient to mitigate the seriousness of respondent’s offense. The attorney was disbarred.

Apparently, inconsistent sanctions are in some instances attributable to recognition of various factors mitigating an attorney’s misconduct. However, a review of the cases illustrates the uneven and arbitrary application of the mitigating factors. Two factors often advanced by a respondent in mitigation are financial and emotional or family problems. In In re Smith (1976), 63 Ill. 2d 250, an attorney converted proceeds from a client’s settlement award to his own personal use. He offered evidence in mitigation to the effect that he suffered severe financial and emotional problems during the time of the alleged misconduct. In ordering that the attorney be disbarred, this court indicated that personal difficulties would not excuse the misconduct. This court, in other disciplinary cases involving conversion, has recognized that personal problems would not excuse the attorney’s actions, and ordered suspension. (In re Simpson (1971), 47 Ill. 2d 562; In re Abbamonto (1960), 19 Ill. 2d 93.) However, in still other cases involving conversion, this court has used personal or domestic difficulties as a mitigating circumstance in arriving at a sanction of suspension. (In re Driscoll (1981), 85 Ill. 2d 312; In re Bass (1971), 49 Ill. 2d 269). In Bass, family problems (along with an impressive war record) were allowed as mitigation resulting in a one-year suspension even though, in addition to conversion, the attorney failed to prosecute suits, failed to notify a client he had not filed suit in a case, and was convicted for income tax evasion. In yet other cases, not involving conversion, this court has considered family or emotional problems as a mitigating circumstance reducing the sanction imposed. E.g., In re Hopper (1981), 85 Ill. 2d 318; In re Chapman (1978), 69 Ill. 2d 494; In re Andros (1976), 64 Ill. 2d 419.

Another area of inconsistency has arisen in the court’s approach toward restitution as a mitigating circumstance. In a number of cases, restitution of converted funds has been expressly or implicitly considered as a factor mitigating the seriousness of an offense. (See In re Costigan (1976), 63 Ill. 2d 230; In re Bloom (1968), 39 Ill. 2d 250; In re Power (1950), 407 Ill. 525.) For example, in In re Turner (1979), 75 Ill. 2d 128, an attorney, without authorization, signed the names of three clients on the back of a settlement check for $850, deposited the check in his personal account, and subsequently overdrew the account. He did not pay the clients until one day prior to the scheduled hearing before the Inquiry Board. In addition, the attorney gave false testimony before the Board. This court compared the case to In re Stillo (1977), 68 Ill. 2d 49 (where this court disbarred an attorney, who was dishonest before the Hearing Board, for commingling and converting funds) and suspended Turner for three years. The court noted his prior unblemished record and that he had made restitution to the parties. In In re Smith (1979), 75 Ill. 2d 134, respondent was charged with three separate instances of endorsing a client’s name on a check, depositing the check in his own account, and using the funds for his own purpose. The attorney made false representations to the clients regarding the money. This court held that the respondent’s acts, together with the absence of attempts at restitution, candor or remorse, warranted respondent’s disbarment.

In contrast, some cases specifically indicate that restitution will not excuse the improper conduct. (In re Feldman (1982), 89 Ill. 2d 7; In re Sherman (1975), 60 Ill. 2d 590.) In other cases, this court has distinguished between the effect of restitution made prior or subsequent to the initiation of a complaint. (See In re Brody (1976), 65 Ill. 2d 152; In re Smith (1976), 63 Ill. 2d 250.) In still other situations attempts at restitution were not considered by the court in imposing a sanction. In re Cleveland (1981), 85 Ill. 2d 520; In re Stillo (1977), 68 Ill. 2d 49.

Another factor accorded inconsistent treatment by the court is the prior record of an attorney against whom a complaint has been brought. In In re Clayter (1980), 78 Ill. 2d 276 (discussed above) and In re Sherman (1975), 60 Ill. 2d 590, attorneys were guilty of commingling and converting their clients’ funds. This court determined that censure was a sufficient sanction, partly because the attorneys were not cited for misconduct prior to the incidents in question. In In re Schlax (1980), 81 Ill. 2d 66, where an attorney commingled and converted funds in a single instance, this court, taking into consideration character testimony, community service and otherwise exemplary professional conduct, suspended respondent for three months. Yet, in In re Gartland (1970), 47 Ill. 2d 177, this court refused to consider the fact that the incident was the first misconduct by the attorney, who converted funds of a savings and loan institution. In imposing a one-year suspension, this court indicated it was not persuaded by the attorney’s previously unblemished record because the first purpose of a disciplinary proceeding is “to safeguard the public, maintain the integrity of the profession and to protect the administration of justice from reproach.” 47 Ill. 2d 177, 183.

Finally, a deviation occurs even in the court’s treatment of the principle that an exemplary record generally inures to the attorney’s benefit while other prior disciplinary action, if considered, is to his detriment. For in In re Baker (1973), 55 Ill. 2d 272, this court actually used a prior sanction as a mitigating circumstance. The court held that an attorney’s misconduct warranted censure, rather than suspension, because “the conduct of the respondent which was the ground for his suspension for one year in 1967 was more reprehensible than the 1964 conduct now complained of and for which the Board advises a two-year suspension.” 55 Ill. 2d 272, 274.

Notwithstanding the inconsistencies in the above-discussed disciplinary cases, I discern one relatively clear pattern. Continuing conduct involving commingling and conversion generally warrants an attorney’s disbarment. Therefore, in the instant case, where the majority acknowledges that respondent’s conduct involved “a pattern of repeated commingling and conversion of funds” (89 Ill. 2d at 254-55), I believe a sanction of disbarment is appropriate.

In several cases, conduct similar to or less egregious than that which occurred here has resulted in an attorney’s disbarment. For example, in In re Feldman (1982), 89 Ill. 2d 7, decided this same term, we ordered disbarment of the attorney for converting estate funds of two clients to his own personal use. In so holding, we noted that the wrong committed did not involve an isolated incident. Rather, as in this case, respondent there “manifested a pattern of behavior which clearly tends to bring the legal profession into disrepute.” (89 Ill. 2d 7, 13.) Further, the respondent here converted the funds of six clients, and therefore his conduct is arguably more severe than that involved in Feldman. Although mitigating circumstances were urged by the respondent in this case, there is no indication that they were considered by the court.

Similarly, in In re Smith (1979), 75 Ill. 2d 134, the attorney was disbarred for the wrongful conversion of clients’ funds. In that case, respondent received settlement or judgment checks to which his clients were entitled. He forged their endorsements on the checks, deposited them in his bank account, and converted the proceeds to his own use. In imposing the sanction of disbarment, the court considered the fact that respondent was guilty of three independent acts of conversion. Although the court notes other aggravating circumstances (misrepresentations to his clients, lack of candor, and no attempt at restitution), the attorney in the instant case also did more than commingle and convert funds. He avoided communication with his clients and, as noted by the Review Board, engaged in “loose, careless and dilatory practices.” (See 89 Ill. 2d at 253.) Further, as the majority indicates, respondent’s explanations for his conduct are “completely unacceptable” (89 Ill. 2d at 253), and consequently his candor is questionable.

In In re Stillo (1977), 68 Ill. 2d 49, the attorney was charged with converting his client’s funds, in that he settled her claim and failed to submit to her the proceeds of the settlement. He also borrowed $10,000 from another client which he failed to repay. On the basis of respondent’s deceptive attitude before the Hearing Board, and these two instances of misconduct, only one of which involved conversion, this court ordered that the attorney be disbarred. Similarly, this court in In re Smith (1976), 63 Ill. 2d 250, determined that disbarment was an appropriate sanction for an attorney who converted to his own use the proceeds of his client’s settlement award. This discipline was imposed despite respondent’s assertions of mitigating circumstances, and the fact that he extracted money from only one client.

In In re Frey (1976), 65 Ill. 2d 130, an attorney was disbarred for commingling and converting his clients’ funds, which conduct, as in this case, “extended over a considerable period of time.” (65 Ill. 2d 130, 131.) The court further indicated that respondent falsely advised his clients with respect to the status of their claims. Similarly, in the instant case, the attorney misrepresented to at least one client that he would receive his money in about two weeks. Two months later, the client still had not received the sum to which he was entitled. Further, two clients received checks from respondent which were subsequently returned for insufficient funds. As this court stated in In re Frey (1976), 65 Ill. 2d 130, 131-32, the attorney’s misconduct did not involve “merely negligent acts but are positive acts of misconduct which require disbarment.”

Although these cases alone indicate that the disbarment of respondent is clearly warranted, there are numerous other cases to the same effect. (See, e.g., In re Fumo (1972), 52 Ill. 2d 307; In re Snitoff (1972), 53 Ill. 2d 50; In re Lingle (1963), 27 Ill. 2d 459; In re Patlak (1938), 368 Ill. 547.) As this court stated in In re Stillo (1977), 68 Ill. 2d 49, 54: “When 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 Royal (1963), 29 Ill. 2d 458, 464; In re Ahern (1962), 26 Ill. 2d 104, 110.) Any mitigating factors urged in the instant case, as in In re Feldman, cannot possibly alleviate the attorney’s repeated and grievous departures from his ethical and professional obligations.

In summary, based upon the above cases, I believe the appropriate sanction here is disbarment, rather than the suspension ordered by the majority. I reaffirm my view that although it is necessary to consider the facts and circumstances of each case, that proposition should not be used as an aegis to attenuate the always strived-for goal of consistency.