author: JUSTICE CLARK JUSTICE UNDERWOOD,

text:
    (No. 56123.

      In re ARNOLD HERMAN CRANE, Attorney Respondent.

      Opinion filed April 13, 1983.
    Rehearing denied May 27, 1983.

      David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Sidney Z. Karasik, of Chicago (Catherine L. Grahn, of counsel), for respondent.
   JUSTICE CLARK

delivered the opinion of the court:

In this disciplinary proceeding the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that respondent, Arnold Herman Crane, be disbarred. The majority of the Review Board of the Commission concurred in the finding of the Hearing Board that respondent had obtained additional fees from the complainants which they believed constituted overreaching and a violation of respondent’s fiduciary duty. However, a six-member majority of the Review Board recommended that the respondent be suspended from the practice of law for a period of one year, expressing the opinion that disbarment would be too harsh. Two members of the Review Board recommended, as the Hearing Board did, that the respondent be disbarred. The Administrator of the Commission filed a motion for reconsideration by the Review Board of its recommendation that the respondent be suspended for one year. The respondent filed objections to the Administrator’s motion for reconsideration, stating that while he still denies that he is guilty of any wrongdoing, he is willing to accept the discipline of a one-year suspension as recommended by the Review Board. The Administrator’s motion was denied by the Review Board, and he was granted leave to file exceptions with this court.

Two main issues are raised on appeal before this court: (1) whether the hearing and review boards erred in finding that the respondent’s acts constituted overreaching and a breach of the fiduciary duty owed to his clients, and (2) whether disbarment, the Hearing Board’s recommendation, is an appropriate sanction under the circumstances of this case or whether a one-year suspension is a sufficient sanction since the respondent did not file counter exceptions to the recommendation of the Review Board.

Since the facts in this case are extremely involved, an attempt will be made to reiterate only the most important facts. On May 25, 1979, the Administrator filed a complaint against the respondent, charging him with improperly receiving funds from Eva (Smithson) Kryfka, Patricia Smithson, William Smithson and David Smithson, the complainants, who at the time of their mother’s death were 18, 15, 14 and 12 years old respectively. On October 4, 1979, the Administrator filed a second amended complaint charging that, in addition to the incidents that were already alleged in the first complaint, respondent had also received another additional fee from Eva (Smithson) Kryfka, William Smithson and David Smithson.

Early in November of 1972, decedent, Jane Bowman, the mother of Eva (Smithson) Krfyka and Patricia, William and David Smithson, was involved in an automobile accident. At the time of the accident Jane Bowman was driving and her daughter Patricia was a passenger. Patricia was “merely shaken up” by the accident, but the decedent injured both her knees. After the accident, decedent and Patricia went to respondent’s office and decedent retained respondent as their attorney. Respondent alleges that decedent signed a one-third contingent-fee agreement on behalf of herself and her daughter on that day. This fee agreement was not in the record. During the meeting at the respondent’s office, respondent advised decedent’s immediate admission to a hospital because of the severity of the injury to her legs.

On November 20, 1972, Jane Bowman died, having never left the hospital. The hospital phoned respondent’s office to inform him of her death. On that day, an associate of Mr. Crane contacted the family to inform them of their mother’s death and requested that they contact the respondent the following day. On November 21, 1972, Eva (Smithson) Kryfka and Patricia, William and David Smithson went to the respondent’s office. The complainants alleged that respondent told them that since their mother had retained him as her attorney, and she was now dead, he was their attorney. Crane alleges that Eva, the oldest of the children, was aware that she herself had not yet retained him and that she was free to choose whatever attorney she wished.

Eva brought several papers with her to this meeting with Crane. The insurance papers included an accidental death policy from Insurance Company of North America (INA), payable in the sum of $100,000, with all the children named as beneficiaries, and a $15,000 life insurance policy from Equitable Insurance Company in which Eva was the named beneficiary. Crane and the complainants discussed various legal matters which had to be handled. Respondent prepared, and Eva Kryfka executed, on behalf of herself and her sister and two brothers, a contingent-fee agreement. The fee agreement was for two actions Crane was to bring on the children’s behalf, an action against INA on the accidental death policy, and a claim for wrongful death against Dickson and Car Carriers (Dickson), the owner of the truck involved in the accident with Mrs. Bowman. The fee agreement provided for 25% of the proceeds if the actions were settled without a lawsuit and one-third if a lawsuit had to be filed.

At that same meeting, Crane explained the need for an autopsy to establish a causal connection, if any, between Mrs. Bowman’s death and the accident. Respondent sought an autopsy on the decedent, suspecting that an embolism from the leg injury may have caused her death, and that INA would then be liable on its policy of accidental death insurance and Dickson would be liable for Jane Bowman’s death, not merely for personal injuries. Eva gave permission for the autopsy, which was subsequently performed. Respondent also discussed the necessity of opening an administrator’s estate with the complainants at that meeting.

In February of 1973, allegedly after numerous attempts to negotiate a settlement, Crane filed an action in the circuit court of Cook County against INA entitled Eva Kryfka et al., v. Life Insurance Company of North America No. 73 L. 1548. In March, again allegedly after unsuccessful settlement negotiations, Crane filed a second lawsuit entitled Eva Kryfka et al., v. Kenneth Dickson and Car Carriers, Inc., No. 73 L 4622, seeking recovery for the wrongful death of Jane Bowman. Respondent also opened an administrator’s estate on behalf of Jane Bowman, and opened a minor’s estate for each of the children, appointing Eva, who had just reached her majority, as the guardian for each minor.

Both lawsuits that were filed were settled. Respondent settled the life insurance claim against INA for $100,000, the full amount of the policy. The settlement was approved by the probate division and respondent was awarded 25% of each minor’s share as his fee. Four checks were issued by the insurance company, each in the amount of $25,000. Eva, as guardian, endorsed the three minors’ checks. After deducting $6,427 from each minor’s share for his fee and expenses, the respondent issued checks to Patricia, William and David for $18,573 each.

On September 25, 1973, Eva accompanied respondent to court in order to gain final approval from the probate division, and then Eva and respondent went to the American National Bank. At the bank, respondent opened a minor’s account for each of the children, pursuant to order and subject to the supervision of the court. The appropriate check was deposited in each child’s account. Eva’s share was handled differently than the minor children’s shares. The distribution of Eva’s share will be discussed later.

In December 1974, respondent also settled the wrongful death action against Dickson for $75,000. Respondent received approval from the probate division for the settlement and his 25% fee. One check for $75,000 was issued, properly endorsed, and deposited by respondent. After respondent deducted his fee ($18,750) and the expenses he was allowed by the court, respondent issued a check to each of the four children in the amount of $13,646.77, which represented the proceeds owed to each child.

On January 24, 1975, Eva and Patricia went to respondent’s office for their checks. Crane met them at his office, and then all three went to the American National Bank. Respondent deposited the full amount of William’s and David’s checks into their respective trust accounts. However, the distribution of Eva’s and Patricia’s share (Patricia having just reached majority) was handled differently and will be discussed later.

Since each child’s dealings with Crane differed, the facts relating to each child will be discussed separately. However, before we get into a detailed discussion of those facts, it is important to note that another lawsuit was filed by respondent relating to Mrs. Bowman’s death. In the course of taking depositions in the Dickson case, the possibility of a medical malpractice action on behalf of decedent’s estate against the hospital and/or Dr. Doktorsky, Mrs. Bowman’s treating physician, was allegedly suggested to Crane by defense attorneys. Respondent claims that he told the children it would be difficult to prove the cause of death in order to recover for medical malpractice and while he would be willing to handle the case, he would not do so on a contingent-fee basis. Respondent alleges that Eva insisted that the suit be brought on behalf of the minors, and that she agreed to pay for whatever legal work was done. Eva denied that she had any discussions with Crane regarding the fees in the medical malpractice action. She testified that she thought the malpractice case was going to be handled on a contingent-fee basis. The fact remains that no fee agreement was entered into concerning this medical malpractice suit, so that even if Eva understood, as Crane alleges, that this case was to be handled on a non-contingent-fee basis, she did not know what Crane was going to charge her per hour, no bills were sent, and no receipts were ever issued. Crane does not deny that no fee agreement was entered into regarding the medical malpractice lawsuit. The importance of these facts will become apparent later.

We will discuss Eva’s financial dealings with Crane first. Eva’s share of the INA insurance settlement, prior to deducting fees and costs, was $25,000. Since Eva was an adult, distribution was made directly to her without court approval. On September 25, 1973, respondent instructed Eva to endorse her check for $25,000 to him. He then issued a check to her in the amount of $15,000, keeping $10,000 as his fee. No receipt was issued at that time. Respondent next filled out a deposit slip for $12,500 for Eva. After depositing the $12,500, Eva received $2,500 in cash. What happened to the $2,500 in cash is in dispute. Eva alleges that respondent received the $2,500 in 25 $100 bills, which he kept, stating that the money represented “additional fees.” Eva alleges that respondent neither indicated what the fees were for nor issued a statement or receipt when he allegedly received a total of $12,500 on that date. Crane denies that he received any additional money from Eva that day. The opening deposit that Eva made at the American National Bank that day was $12,500.

Eva’s share of the wrongful death claim, less the fees and costs ordered by the probate court, was $13,646.77. On January 25, 1975, after the court appearance regarding the wrongful death settlement, respondent allegedly took Eva and Patricia to the American National Bank. Eva testified that, after she endorsed her check, the respondent instructed her to make out a deposit slip for $10,000. Eva alleges that respondent received the remaining $3,646.77. Eva also stated that on that same day Crane demanded and received an additional $750 in cash from her and Patricia. Eva alleged that she withdrew $1,500 and gave respondent $750 for her and $750 for Patricia.

Crane testified that his partner Shapiro handled the distribution of the wrongful death settlement in January of 1975. Crane contends that Eva and Patricia paid additional fees to Mr. Shapiro by certified check, each check in the amount of $3,646.77. But Crane denied that he was at the bank on the date in question and also denied that he requested or received $750 from either Eva or Patricia. Crane testified that the distribution was handled without his knowledge by his partner and that he first became aware of the certified-check payments following a meeting in 1978 with Eva and the Smithsons, the new family attorney, and Mr. Braun, counsel for respondent. Kespondent does not dispute that the money was deposited by Shapiro into their partnership account and that he, therefore, received the benefit of the money. However, he does contend that he had no knowledge of Shapiro accepting the money and, therefore, should not be held accountable.

Eva’s share of the two settlements was $38,646.77. Eva alleges that respondent received $16,146.77. The Administrator’s brief claims that respondent received $22,334.72 from that total.

Patricia Smithson attained her majority in October of 1974, after the first settlement with INA, but before the second settlement with Dickson. Allegedly at respondent’s request, Patricia and Eva went to respondent’s office on October 9, 1974. Mr. Shapiro, Crane’s associate, handled matters that day. Patricia testified that Shapiro instructed her that they were going to court and that she should not mention to the probate judge the additional fees that he, Shapiro, had requested. At the courthouse, when the judge asked if there were additional fees owing, Patricia testified that Shapiro said no. After appearing in court, Shapiro, Eva and Patricia went to the American National Bank. Patricia testified that Shapiro demanded and received $3,200 in “additional fees” on that date.

As was discussed earlier, Patricia, Eva and Crane allegedly went to the bank in January of 1975, after the settlement of the wrongful death action. At one point in this case, Patricia had alleged that she had not received her share of the wrongful death settlement, but a cashier’s receipt for $10,000 was produced and she recalled depositing that money. Patricia testified that respondent instructed her, as he had instructed Eva, to endorse her check for $13,646.77. After endorsing the check Patricia informed respondent that she had recently closed her account at the American National Bank and put her money in another bank. Respondent allegedly used her settlement check to purchase a $10,000 cashier’s check payable to Patricia and had the bank issue a cashier’s check for the remaining $3,646.77 payable to his firm. As discussed previously, Eva testified that Crane also demanded and received $750 each from her and Patricia. Eva testified that a $1,500 cash payment was made to Crane because he stated that the amount was for fees still owed him.

Patricia’s share of the two settlements was $32,219.77. The probate division approved fees owing to respondent in the amount of $11,114.50. Patricia alleges that respondent obtained $17,961.27 from her, $6,846.77 more than the fee approved by the court.

William Smithson reached the age of 18 years on November 28, 1975. Crane testified that Eva advised him earlier in the month of November that William was about to reach his majority and that he wanted his money. William testified that at the time he was unemployed. He further testified that he went to respondent’s office on December 16, 1975, and signed documents which Crane held in his hand and that, when he asked to read the documents that he was signing, respondent stated that he was in a hurry and that William should just sign them. Crane testified that William called him and told him that he was employed at a garage and that he wanted his money, but wondered whether the matter could be handled without his (William’s) presence. Crane testified that he advised William that William’s presence was unnecessary if he would sign an affidavit. The affidavit, Crane claims, was delivered by an associate of his to the Kryfka residence. Crane’s associate testified that he did deliver papers to the Kryfka home for signature.

One of the documents signed by William was an affidavit stating that he was employed and that it would be inconvenient for him to appear in court. William testified that respondent told him that it would not be wise for him to go to court with respondent, that he might “say the wrong thing and mess it up” so that he would not get his money until he was 21 years old.

On December 29, 1975, William returned to respondent’s office. Respondent gave William a copy of the probate division order and a bank passbook. Crane testified that he told Eva that the family owed him fees for work that he had done to date on the malpractice case. Eva allegedly told Crane that he should take the money from William and that the family members would apportion the cost among themselves. William testified that when respondent gave him the passbook he told him they had to go to the bank because William owed him money. William testified that he asked respondent what the money was for and that respondent stated that it was for keeping the account open and gathering interest for the years between the time when Patricia had turned 18 and William had turned 18. Respondent prepared a withdrawal slip, William testified, in the amount of $4,800 and instructed William to sign it. William testified that respondent gave the slip to the teller and received $4,800 in large bills, which Crane kept. Crane’s story differs from William’s in that Crane testified that he did not go to the bank with William that day but that William showed up in his office the first week in January of 1976 and gave him $5,000 or $5,200. William testified that he did go back to respondent’s office in January with $2,000 in addition to the $4,800 Crane had taken from him at the bank. William stated that Crane had contacted him and told him that he had “shortchanged himself” and that William still owed him an additional $2,000. In any event, William gave Crane money in January which allegedly was for additional attorney fees without receiving a bill or receipt.

Crane testified that he had successfully handled a hit- and-run case for William in March — a case where William was a defendant. Crane requested a $1,500 retainer for that service. Crane stated that William gave him $1,200 in cash at the time of his representation in March of 1976 and that he called William the next day to tell William that he had shortchanged himself. On cross-examination, William stated that he did give Crane additional money in March of 1976. The record is unclear as to whether the occurrence in January and the occurrence in March were actually one and the same.

William’s share of the two settlements was $32,219.77. The probate division approved fees owing to respondent in the amount of $11,114.50. William alleged that respondent obtained $17,914.50 from him, an amount constituting $6,800 more than the fee approved by the court.

David Smithson, the youngest of Jane Bowman’s children, became 18 on February 1, 1977. Respondent allegedly called David Smithson early in 1977 and told him he should call respondent when he became 18. Crane testified that in December of 1976, after the malpractice suit was dismissed on a motion for summary judgment, Eva advised him that David was reaching his majority soon and he wanted his money. According to Crane she told him that the family would settle up all the remaining fees they owed him when David got his money.

In January of 1977 before David turned 18, David testified that he asked Eva if she knew of another lawyer. Eva purportedly told him he should call a particular lawyer whom she named. David called him and asked him to review some documents relating to the case. David met him at his office and they reviewed the documents. They also met at the Chicago Civic Center and reviewed the court files. The attorney then met with all the members of the family and advised them to complain to the Attorney Registration and Disciplinary Commission concerning the handling of their affairs.

On February 24, 1977, all four of the complainants went to the offices of the Commission, where they filled out and submitted a complaint form. At that time the complainants told the Commission that David had an appointment with respondent the next afternoon. The family again met with members of the Commission the morning of February 25, 1977, after one of the members of the staff called them, but before David was to meet with Crane.

In the afternoon on the 25th, David and Eva went to respondent’s office. Crane testified that they arrived late and he told them because they were tardy he was not sure he could get a court order approving distribution that day. David testified that Crane told him that he was unsure if he would be able to get his money because David had waited too long and the laws were changing. Respondent and Eva talked privately on that day. Respondent testified that he talked to Eva about the non-contingent fees still owed for the medical malpractice suit. According to Crane, Eva told him to take the money from David’s account and that the members of the family would settle up among themselves. Eva’s version of the conversation differed substantially. She testified that Crane took her aside to ask her if David was going to make trouble for him over the money David owed him.

Eva, David and Crane went to probate court after their meeting at Crane’s office. David testified that respondent told him to “keep his mouth shut and go along with anything.” David stated that at the courthouse Crane told him not to mention anything about fees, because if he did he might not get his money until he was 21. Crane denied that he advised David to lie. An order releasing David’s funds was obtained that day.

On the way from the courthouse to the bank, Eva testified that respondent took her aside and told her that he was going to take about a third of the money in David’s account and that if she did what she was told to do, there might be a little something in it for her. At the bank, respondent allegedly told David to fill out a withdrawal slip for $12,000. Crane took the slip to James Brenner, a bank official. Brenner told the respondent that any amount over $10,000 required special approval. After hearing that special approval was required, a new slip for $9,500 was filled out. Brenner, David and Crane went to a vault and Brenner handed Crane 95 $100 bills. David testified that he asked Crane for a receipt and that respondent told him he was not going to give him a receipt to avoid taxes from having to be paid on the money. David agreed to bring respondent the remaining $2,500 he was supposed to owe him the following week. David testified that respondent told him that when he paid the rest of the money he would receive his bank book.

David’s share of the two settlements was $32,219.77. The probate court set respondent’s fee at $11,114.50. Respondent allegedly received $20,614.50 from David, $9,500 more than the fee approved by the court.

While respondent was still at the bank with Eva and David, he was served with a subpoena by one of the investigators of the Commission. The subpoena required that Crane produce all the documents and records that he had pertaining to the complaint that had been filed by Eva Kryfka and the Smithsons. Later in this opinion there will be a discussion of the role of the Commission in the occurrences of February 25,1977.

Respondent testified that he did charge Eva and the Smithson children fees relative to the medical malpractice action he brought in their behalf. He testified that he spent substantial time (175 hours) on that matter and that Eva knew that his fees were to be paid on a non-contingent-fee basis. Eva testified that there were no discussions relative to fees, no retainer was paid, and no written fee agreement was entered into. Respondent does not deny that he sent no bills, kept no time records, and issued no receipts. However, he does assert that Eva knew that he had additional fees owed to him for not only the medical malpractice action but also other matters he handled for the family on a regular basis. Crane alleges that the children came to him on numerous occasions with problems they were having and that he would always talk with them and try to help them out. He alleges that he met with various family members concerning David’s truancy, Eva’s difficulties in getting Patricia to go to school and work, and Eva’s marital difficulties and fear that her husband was going to take her money. Eva also consulted the respondent regarding a possible lawsuit regarding the death of one of her children. After investigating the matter, respondent advised Eva that there was no cause of action.

According to the Administrator, since the institution of the disciplinary proceedings in this case, respondent has returned the sum of $24,088.06 to Eva Kryfka and the Smithsons. In the Administrator’s brief, it states that Eva has received $3,646.77, Patricia has received $6,852.56, William has received $4,088.73, and David has received $9,500.

Mr. Crane was 49 years of age at the time the complaint against him was filed. He was admitted to the practice of law in Illinois in 1955. He had several character witnesses testify on his behalf to the effect that he has an excellent reputation in the community for truth and veracity.

In this case, both the Hearing Board and the Review Board concurred in the finding that “respondent had committed a number of improprieties as alleged against him in the complaint.” Those improprieties, they found, consisted of “obtaining additional fees from complainants,” “individuals that lacked a good deal of sophistication in the affairs of life.” The additional fees that were given to Crane were always paid in cash, and in all cases without submission of written bills or any explanation of the basis of the billing.

The hearing and review boards found that these additional fees received by the respondent constituted “overreaching and a violation of respondent’s fiduciary responsibility” to the complainants. They also found that respondent’s actions brought the legal profession into disrepute.

This case is unusual in that it involves complainants who were minors, with the exception of Eva, the eldest, when they first came in contact with the respondent. It is clear from the record that the complainants, without the guidance of either parent, placed an extraordinary degree of trust-and confidence in the respondent. While we have always recognized that an attorney occupies a fiduciary relationship to his client (see In re Czachorski (1969), 41 Ill. 2d 549), in certain circumstances a closer relationship develops between some attorneys and their clients. As this court stated in In re Saladino (1978), 71 Ill. 2d 263, 272-73:

“We do not wish to discourage attorneys from developing close relationships with or from undertaking more responsibility on behalf of clients. Given the position of attorneys in our society, it is not surprising that frequently they become indispensable to their clients. Their advisory role may come to transcend merely the dispensation of legal counsel. Having undertaken such responsibility, however, an attorney is under a duty not to abuse such a relationship and an obligation to avoid even the appearance of impropriety.”

We concur in the Hearing Board’s finding that “the relationship between Arnold Crane and these complainants [was] one that was not merely of the ordinary attorney-client relationship but one which was vested with an additional high degree of trust and confidence.”

Given the special relationship that developed between the respondent and his clients in this case, we find that the respondent, having undertaken such responsibility, was under a duty not to abuse his relationship to the complainants and to avoid even the appearance of impropriety. Requesting and receiving large sums of cash from each minor upon reaching majority, without ever explaining the basis of these “additional fees” and without ever issuing receipts, certainly gives rise to the appearance of improper conduct. Respondent knew these clients were young and lacked sophistication in the handling of financial and legal matters. Therefore, he should have taken every step to keep them informed of the matters he was handling for them and handled them in an above-board manner.

Respondent asserts that complainants were “completely discredited by their blatantly contradictory testimony” at the hearing. While there are places in the record where the testimony is not always clear, perhaps due to the lapse of time and the ages of the children at the time some of the incidents occurred, the Hearing Board and Review Board believed the complainants’ testimony or they would not have recommended that the respondent be disciplined. We too, after reviewing the record in this case, conclude that the respondent’s conduct warrants discipline.

The Administrator alleges that respondent intentionally deceived the probate court. The Administrator asserts that the respondent was required to obtain court approval for the fees he was charging in the medical malpractice case. The Administrator, in support of his contention that approval was necessary, refers to Rule 12.23 of the rules of the circuit court of Cook County, which was in effect in 1977 when the malpractice claim was pending. Rule 12.23 required that any settlement of a personal injury cause of action on behalf of an estate had to be approved by the probate division of the circuit court. Respondent had an expert witness testify that respondent did not violate any custom, rule or practice in the probate division in not getting approval for the additional fees he received for the medical malpractice action.

We do not agree with the Administrator that Rule 12.23 supports the allegation that respondent was required to obtain approval of the court to collect the additional fees in question. There was no settlement in the malpractice action; the case was dismissed. Thus under Rule 12.23 the respondent was not required to obtain court approval.

The Administrator cites two cases for the proposition that the probate division has the power to fix reasonable attorney fees and the discretion to disallow or disapprove such fees in certain circumstances. (In re Estate of Minsky (1978), 59 Ill. App. 3d 974; In re Estate of Brown (1978), 58 Ill. App. 3d 697.) In both those cases the fees that were contested were fees for the normal duties of administering an estate of a deceased. Respondent claims that the fees he was collecting from the complainants were for a medical malpractice suit which was outside the regular duties performed in administering the estate of the decedent and that Eva, who was over 18, understood that the fees for the malpractice claim were to be handled on a non-contingent-fee basis.

The Administrator cites no authority, and we have found none, that states that it was mandatory that Crane obtain approval of the probate court for the fees he charged for the malpractice claim. It seems incredible that there is no rule requiring court approval for attorney fees for the medical malpractice claim in this case because it was dismissed and not settled, but it is clear that no such rule exists. The Hearing Board found that respondent received additional monies from the complainants totaling $18,666. Crane admits that he demanded a total of approximately $17,000 for his services in the malpractice case. The fee, he testified, was predicated on 175 hours he spent on the malpractice claim. Crane asserts that the Administrator did not cross-examine him regarding the time spent on the malpractice case or the quality of services rendered. Crane contends that he had the money coming to him for the services he rendered over and above the work he did on the ESTA and Dickson cases and that he did not need court approval for these fees. Crane asserts that his only indiscretion was in failing to enter into a written fee agreement regarding these fees.

The Review Board stated, “If additional services were rendered, we conclude that respondent was entitled to be paid for those services. Our point of departure from counsel for respondent’s line of argument is respondent’s overreaching manner in collecting the additional fees.” The Hearing Board stated, “What is incredible about the relationship is that the respondent was retained to handle a malpractice case on an open ended fee arrangement without either a fee agreement or the manner in which fees were to be charged ever being discussed between the parties.” While we recognize that it is not mandatory that an attorney enter into a written non-contingent-fee agreement with a client, we believe that a prudent attorney, given the relationship Crane had with these complainants, would have at least discussed the manner in which the fees were to be charged. The respondent’s conduct in receiving the fees without bills or receipts and his alleged comment regarding his desire to avoid paying taxes on the $9,500 he received from David certainly raises suspicion as to the propriety of his actions.

There was also a charge made by the Administrator that Crane told the minors not to tell the judge in probate court that there were additional attorney fees owing when they appeared in court. There is nothing in the record to suggest that it is regular practice for the judge in probate court to ask about attorney fees when a minor’s estate is being closed. Crane denies that this charge has any validity and argues that the record does not support the Administrator’s claim. The Review Board found that “he [respondent] requested the minors not to tell the judge that there would be any more fees paid.” It is clear that the hearing and review boards believed the testimony of the complainants on this disputed question of fact.

Prior to this case being argued before us, the respondent filed a motion to supplement the record on appeal by the inclusion of discovery depositions taken of John O’Malley, William Stephenson, Kevin Roach and Howard Kaufman, members of the Commission’s staff. This court granted the motion and entered an order allowing the record to be supplemented. The Administrator of the Commission subsequently filed a motion requesting that this court reconsider the order which was entered. The court directed counsel for the Administrator and counsel for the respondent to argue the pending motion of the Administrator during oral argument in this cause on Tuesday, September 14, 1982. In the course of oral argument, counsel for respondent asked for leave of court to file written objections to the Administrator’s motion. Respondent’s counsel was given leave to file his motion, and the Administrator was given leave to file a response to the respondent’s motion.

In support of his contention that the order allowing the record on appeal to be supplemented was properly entered, respondent cited In re Steinbrecher (1973), 53 Ill. 2d 413. In that case, this court, in referring to certain affidavits and letters written on behalf of the respondent therein, stated,

“These documents were not presented to the hearing panel, but we do not regard respondent as having been prejudiced by their absence. They were before the Board of Governors in their review of the hearing panel’s findings and recommendations which were concurred in by the Board. In any event, final responsibility for determining the severity of the discipline to be imposed rests with this court, and we have examined and considered them.” 53 Ill. 2d 413, 420.

The Steinbrecher case is distinguishable from the instant case for two reasons. First, in Steinbrecher the respondent was not represented by counsel at the hearing. Respondent’s counsel had filed a motion for a continuance because he was going to be on trial on the date the hearing was scheduled. The hearing was held even though counsel was not present. Second, the evidence which was at issue in Steinbrecher was considered on review, before the case came up to this court on appeal.

In the instant case, respondent was represented by counsel at the hearing. Also, the evidence in question was not newly discovered evidence but a number of discovery depositions which were taken prior to the hearing in this matter and which were available to counsel at the time of the hearing and at the time of review by the Review Board.

While we do not approve of the practice of the respondent in the instant case in requesting that this court consider evidence which was available to him before the hearing but which he failed to present to either the hearing or review boards, we will consider this evidence that has been allowed in and is presently before us as part of the record. As we said in Steinbrecher, final responsibility for determining the severity of the discipline in an attorney-disciplinary case rests with this court. Therefore, given the nature of the proceedings before us and the discrepancy of the recommendations with which we are faced, and since an order was previously entered by this court allowing the evidence to be added to the record, we will consider it in deciding this case.

As the Administrator concedes in his response to the respondent’s objections to the Administrator’s motion to reconsider the order supplementing the record, this court clearly has the authority to supplement the record in its discretion. As this court stated in In re Mitan (1979), 75 Ill. 2d 118, 123-24:

“The disciplining of attorneys is in the nature of an original proceeding in which the Attorney Registration and Disciplinary Commission and its various officers, *** serve only as agents of this court in administering the disciplinary functions that have been delegated to them. *** This court has held that because of the nature of the proceedings before those to whom we have delegated the authority to act, we will not consider technical objections as to the practice and procedures before them, nor can such technical objections bind us or limit our authority to act.”

The respondent requested that these depositions be made part of the record because he alleges that members of the Commission staff are guilty of prosecutorial misconduct. Evidently the respondent believes that these depositions shed some light on his allegation.

The respondent discusses entrapment in his brief. He alleges that entrapment has been recognized as a viable defense in disciplinary cases and cites In re Porcelli (1979), 77 Ill. 2d 473, for that proposition. In that case this court stated,

“It would be difficult to imagine circumstances in which the defense of entrapment would be available to an attorney in a disciplinary proceeding. Attorneys are versed in the law and should be keenly aware of what activities constitute a breach of the law. This knowledge is inconsistent with the central premise of entrapment, i.e., an implantation of criminal intent in the mind of an innocent person. (Sorrells v. United States (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210.) Therefore, in only the rarest of circumstances may an attorney label himself innocent and shield himself with the defense of entrapment.” 77 Ill. 2d 473, 478.

The respondent then asserts that he was not entrapped because he did nothing illegal.

Respondent next contends that the “defense of entrapment is not present or necessary, but [that] the attempt by the Administrator’s staff in the dubious manner herein suggested, amounts to prosecutorial misconduct.” We believe that the respondent’s assertion is without merit. The Commission first became involved in this case when the complainants came to the office of the Commission and filed a complaint on February 24, 1977. The next day, David Smithson had an appointment with the respondent which he had made prior to going to the Commission and filing the complaint. The members of the Commission staff whose depositions were added to the record explained that they asked David Smithson if they could observe what took place during the time David was to meet with the respondent on February 25,1977.

Crane asked David for $12,000 at the bank. David did not offer to give him $12,000 that day. The staff members just observed what went on. They did not even request that David keep his appointment with respondent on the day in question.

It was Crane’s idea to ask for the money. It was also his idea to reduce the amount of the withdrawal slip when it became apparent that a “large bill report” for the Federal Reserve Bank was required for any withdrawal over $10,000. It certainly was also Crane’s idea to receive $9,500 in cash and not issue a bill or a receipt for the money. David testified that when he asked respondent for a receipt for the $9,500, respondent allegedly told him that he could not give him a receipt because it was “tax-free money,” and that if David received a receipt he (Crane) was “going to have to pay taxes on it.” Crane denies that he made this statement.

Neither David Smithson nor the members of the Commission staff in any way precipitated the respondent’s conduct on February 25, 1977. There is absolutely no evidence of entrapment or prosecutorial misconduct in the record in this case.

Since we have decided that the respondent’s conduct in this case warrants discipline, it is necessary to determine the degree of discipline which is warranted, given the particular facts in this case. “While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.” In re Andros (1976), 64 Ill. 2d 419, 425-26.

“Disbarment of any attorney is the death of his professional life. Regardless of whether the misconduct charged amounts to a crime or merely to professional misconduct, such charge must be proved by clear and convincing testimony.” People v. Lotterman (1933), 353 Ill. 399, 410.

Disbarment is not warranted in this case. Therefore, we next consider whether the sanction of suspension is warranted and, if it is, to what degree.

The money that was received from the complainants herein was requested and received by the respondent after each had attained majority, and the Administrator did not dispute the fact that the respondent had spent 175 hours working on the medical malpractice case for the complainants.

There are several reasons, however, that we find justify suspension in this case. Because of the unique relationship the respondent had with these complainants, we find that his surreptitious manner in collecting his additional fees was improper. The respondent’s requesting large sums of cash without issuing bills or receipts is behavior we certainly wish to discourage. Telling clients not to say anything if asked a question by a judge is also conduct which tends to bring the legal profession into disrepute. The complainants in this case were young impressionable people who probably had not had any prior contact with our judicial system other than their dealings with Mr. Crane. It was his responsibility, as a member of the legal profession and as a person in whom these clients placed a substantial degree of trust and confidence, to handle their matters with the utmost degree of care and honesty. We cannot expect others to respect our system of justice when a member of the legal profession refuses to issue a receipt to a client, telling that person that his purpose in not issuing the receipt is to avoid paying taxes on the money received.

“The purpose of a disciplinary proceeding is to safeguard the public and maintain the integrity of the legal profession.” (In re Levin (1979), 77 Ill. 2d 205, 211.) We believe that suspension of the respondent from the practice of law for three years will serve this purpose.

Respondent suspended.

JUSTICE UNDERWOOD,

dissenting:

Respondent’s conduct in this case is, it seems to me, simply indefensible. After securing probate court approval of his fees in connection with the wrongful death action and insurance policy claims, respondent demanded and received from the children substantial additional fees, usually in cash, with no written statements or explanations of the basis for the claims. Not only were these amounts never approved by the probate judge, but respondent also told the minor clients to lie to the judge if he asked them about fees other than those which had been approved. When told by a bank official that payment to him in cash of his final “fee” in the amount of $10,000 would require his name and address to be recorded, respondent reduced the amount of the requested fee. The inference to be drawn is clear, as the Review Board noted.

Such gross abuse of the fiduciary position which respondent occupied is aggravated by the fact that he was dealing with unsophisticated minors. They apparently uncritically acquiesced in his demands until David, the youngest child who was about to reach his majority, suggested seeing another lawyer, and respondent’s misconduct came to light.

Suspension is, in my judgment, simply an inadequate sanction for a lawyer who can so readily and completely abandon his professional responsibilities, and who, to conceal his own misconduct, urges his minor clients to lie to the court of which he is an officer. I would disbar. In re Nadler (1982), 91 Ill. 2d 326, 334 (Underwood and Moran, JJ., dissenting).

JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: JUSTICE CLARK JUSTICE MORAN, JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 55948.

      In re MARRIAGE OF JOHN DELANCE THOMPSON, Appellee, and KATHRYN MAE THOMPSON, Appellant.

      Opinion filed April 13, 1983.
    Rehearing denied May 27, 1983.

      Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellant.
    Laurence W. Grabb, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

An order was entered in the circuit court of Coles County on May 6, 1981, dissolving the marriage of Kathryn Mae Thompson to John Delance Thompson. Kathryn Thompson appealed certain portions of the order and also asserted that the court should have deferred jurisdiction to a trial court in the State of Michigan. In her appeal Kathryn contended that the award of custody was contrary to the manifest weight of the evidence, the division of property was erroneous, the court erred in sustaining the objection to her offer of proof of petitioner’s reputation, and the trial court erred in refusing to allow her to reopen her case.

The appellate court found that (a) the circuit court of Coles County acted properly in refusing to defer jurisdiction to a trial court in the State of Michigan; (b) the award of permanent custody to John Delance Thompson was not contrary to the manifest weight of the evidence or a breach of discretion; (c) there was no error in the division of property except for an apparent inadvertent omission of $371 that was due Kathryn Mae Thompson; (d) the trial court properly sustained the objection to the respondent’s offer of proof of petitioner’s reputation; and (e) the trial court did not abuse its discretion in refusing to reopen the case. 100 Ill. App. 3d 1203 (Rule 23 order).

John and Kathryn Thompson were married on November 16, 1973, in Pontiac, Michigan. Thereafter, John Thompson took a position with McBride’s Express in Decatur, Illinois. John and Kathryn were living in Decatur on April 18, 1977, when their only child, Daniel, was born. In August of 1977, when Daniel was approximately four months old, the family moved to Lerna, Illinois, where John accepted a position with the H & F Trucking Company.

On November 30, 1979, John told Kathryn that he had to leave town on business, when in fact he intended to spend the night in Collinsville, Illinois, with a female business associate. Kathryn was aware of what actually occurred and on December 1, 1979, she left Lerna with Daniel and left a note indicating that she was returning to her parents’ home because her father was ill.

John constantly called to inquire about Kathryn and Daniel. Kathryn at first denied there were any marital problems, and she attempted to conceal her whereabouts and the whereabouts of the child.

On December 7, 1979, John filed a petition in the circuit court of Coles County for dissolution of marriage and for temporary custody of the child. In the petition it was alleged that the child had medical problems and it was in the best interest of Daniel that custody be awarded to the father. The petition was allowed, and an order was entered on December 7, 1979, granting temporary custody to the father.

John continued to call on a regular basis, trying to contact his wife or her parents, in order to determine the condition and whereabouts of his son. On December 10, 1979, John retained the services of an investigative agency.

Following a short stay at her parents’ home Kathryn moved with Daniel to a home for battered women in Saginaw, Michigan. On December 12, 1979, Kathryn filed for and was granted temporary custody of her son in the circuit court for Saginaw County in the State of Michigan.

On December 30, 1979, the investigator John had hired notified John that he had located Kathryn and Daniel. John arranged to fly to Michigan, with the court order in hand, to obtain physical custody of his son. John forcibly abducted his son from Kathryn on a street in Saginaw, Michigan, placed Daniel in the detective’s car and proceeded to the investigator’s home. At that time he called the Saginaw police department as well as Kathryn’s attorney in Michigan to notify them of the situation. John denies that he knew then that there was a court order giving custody of Danny to Kathryn. The investigator indicated that his employees had attempted to discover if there was a court proceeding pending concerning custody, but that they had failed to discover anything.

The investigator, Robert Swartwood, testified as to Danny’s physical condition at the time the child was picked up in Saginaw.

According to Mr. Swartwood, Danny was without mittens, his cheeks were windburned, he had a cold with a deep cough, he had a small bruise under one eye, and that eye was constantly tearing. The investigator’s wife, who was present when Danny was found, testified that she also examined Danny at the time and found chapped lips, tearing in one eye, and a runny nose.

After John took Danny from Kathryn, he traveled back to the family home in Lerna, Illinois. Upon arriving back in Lerna, John took Danny to see a doctor on three successive days; antibiotics and eardrops were prescribed. According to John, Danny’s right ear was inflamed, his left ear was full of wax, and when spoken to by his father he had trouble hearing him. Further ear surgery was required in March of 1980.

Following the father’s and son’s arrival back in Lerna, John went back to work for H & F Trucking Company. He and Danny continued to live in the same home in Lerna that had been the marital residence.

In January of 1980, John began seeing a woman by the name of Betty Coffman. Ms. Coffman and John saw each other regularly for the next five months, with Ms. Coffman frequently spending weekends at John’s home. During two of those months John also had a cousin by the name of Kenneth Dolson living in the house. Ms. Coffman testified that during her weekend visits she slept with John, and that she took the same care of Danny that she took with her own two children. Ms. Coffman indicated that Danny always had the sniffles, coughed frequently and had ear trouble. She further testified that she would change his diapers, cook his meals, and change and wash his clothes. Ms. Coffman testified on cross-examination that John was a good, loving father who looked after the medical and other needs of his child. She also testified that John and she talked on several occasions prior to the custody hearing and on one such occasion, according to Ms. Coffman, John reminded her that “I [John] have some pictures and don’t forget there is a custody hearing coming up.” Ms. Coffman indicated that the pictures John was referring to were nude pictures of Ms. Coffman that John had taken when they were seeing one another.

Ms. Coffman also testified that John came to her house in West Terre Haute, Indiana, one evening and that she would not open the door. John said he wanted to talk with her. She would not talk to him because she was afraid of him. John said that he would be back and that she had not seen the last of him. Ms. Coffman swore out a warrant for John’s arrest which is still pending; John did not return. Ms. Coffman indicated that she broke off the relationship with John because he was seeing another woman.

Soon after John and Danny returned to the home in Lerna, John made arrangements for Danny’s day care at the home of Virginia Sons.

Mrs. Sons testified that when she first met Danny he was insecure, clinging, and sickly. She also testified that he tired easily and had colds, which included ear infections. She further found that he was undisciplined, not potty-trained, and had poor eating habits. She felt he was overweight, withdrawn and in need of special attention. Her husband, Gerald Sons, testified that when he first saw Danny he was insecure, sickly, cried a lot and was a picky eater. Mrs. Sons felt that she saw dramatic changes in Danny within the first six months that John had Danny. She testified that Danny was less susceptible to colds, that he did not tire as easily, and that his ear infections cleared up. She observed him become comfortable, more stable and secure. She observed a happy little boy, glad to see his father. Mrs. Sons testified that John’s attitude towards his son was very good, that he (John) was a concerned, responsive parent, and that as a result the child slimmed down and appeared to be very content.

Virginia’s husband, Gerald Sons, testified that, during the period of time in 1980 when he was around the boy, Danny’s emotional condition improved and he was well adjusted. Mr. Sons felt that John was conscientious and observed John and Danny kissing and hugging on many occasions.

Kathryn’s first effort to contact Danny occurred on January 25, 1980, almost four weeks after John had brought him back home. Kathryn talked to Danny on the telephone on March 9, 1980. Kathryn admitted, under cross-examination, that she did not inquire about Danny between January 25, 1980, and March 9, 1980. Kathryn did not make any direct calls to John or to Danny or visit Danny between March 9, 1980, and a visitation which occurred in November of 1980.

Around Easter of 1980, Kathryn sent an Easter card to Danny and again around his birthday in April she sent a birthday card and doll. She sent another card in July of 1980. The final written communication occurred near Thanksgiving of 1980, when she sent a Thanksgiving card.

On July 1, 1980, Kathryn appeared in the circuit court of Coles County and testified for the purpose of obtaining an order for a preliminary injunction against John disposing of any property and, while in Coles County, made no effort to contact Danny.

Kathryn asserts that she did not contact Danny because her previous attorney advised her not to speak with John. Danny was not capable of picking up the phone at that time. Kathryn also asserts that she was afraid of John and, therefore, did not visit Danny as often as she would have liked.

Jesse Thompson was a friend and co-worker of John Thompson at the H & F Trucking Company. He testified that he saw a significant improvement in Danny’s health and that he (Jesse) observed a very warm and loving father-son relationship.

Mr. James Collin, á contractor who was working on renovations in John’s home, testified that during that spring and summer of 1980 he observed Danny as a normal child and that Danny and John often would sit and play the banjo and games together and that they seemed to have a good relationship.

Kathy Bean, operator of a local restaurant in Mattoon, came to know John and Danny Thompson as customers. She testified that during that spring and summer she observed a child who became more sure of himself as time went on, and that he seemed polite, clean and well adjusted. She described him as “a very robust, shining little boy.” She believed that John was crazy about Danny.

Reverend Richard Anderson came to know John and Danny through the Loxa Presbyterian Church in Mattoon. According to Rev. Anderson they attended services from January through June of 1980, and he felt John was conscientious about Danny’s proper religious training and that John and Danny exhibited a sincere and caring attitude towards one another.

One neighbor who knew John and Kathryn when they were residing together in Lerna testified that Kathryn had told her on one occasion that she would be glad when Danny got bigger because it was hard for her to cope with a little baby. John also testified as to Kathryn’s supervision of the child. According to John, on one occasion he found Daniel unsupervised in the yard playing with scissors, and on another occasion unattended in the bathtub. John also testified that Kathryn would punish Danny for crying.

Barbara Hart testified that on one occasion Danny was left crying for about 45 minutes until he finally fell asleep. Ms. Hart also indicated that during the summer and early fall of 1979, Danny was overwrought, wore ill-fitting clothing and improperly pinned diapers, and ate food not properly prepared.

Ms. Hart also testified as to Danny’s condition when John and Danny returned to Lerna. Ms. Hart observed a change in Danny. She testified that he came out of his shell, that his clothes fit, and that he was properly dressed.

John testified that he continued his employment with H & F Trucking until June of 1980 at which time he accepted employment with Advance Transport in Effingham, Illinois. There was also testimony from John’s employer at H & F Trucking that, while John resigned, he (John) sought to return to H & F Trucking before he accepted employment with Advance Transport, but he was not rehired. The employer at H & F Trucking testified that John took various salvage items and distributed them amongst his friends.

He worked for Advance Transport until August of 1980 and, thereafter, began employment with Complete Auto Transport in October, where he was employed at the time of the hearing.

At the time of the hearing, John and Danny lived in Highland, Illinois, in a ten-year-old, three-bedroom home on approximately one acre of land. According to John, a hospital and daycare center were nearby and he had made arrangements for Danny to begin kindergarten. John testified that he has seen to the proper religious education of Danny.

According to John he has spent all of his time, when not at work, with Danny.

The appellate court, in a Rule 23 order, found that because the counsel for Kathryn did not raise the issue timely, the issue of whether the circuit court of Coles County had improperly exercised its jurisdiction had been waived. While we do not deem a question of jurisdiction to be waived, we do find that the circuit court acted properly in rejecting an untimely request for deferral to a trial court in Michigan.

Counsel did not ask the circuit court to consider deferring the case until closing arguments were being made on January 21, 1981, more than a year after the case had begun.

The Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.) provides guidelines to avoid conflict and competition with courts of other States in determining matters of child custody. We agree with the appellate court that one of the purposes of the Act is to assure that litigation concerning the custody of a child takes place in the State in which the child and his or her family have the closest connection. Another is to deter abductions and other unilateral removals of children undertaken to obtain custody awards. Ill. Rev. Stat. 1979, ch. 40, pars. 2102(3), (5).

Section 4(a)(1) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 2104(a)(1)) provides that the circuit courts have “jurisdiction” to make a child-custody determination if the State is the home State of the child at the time of the commencement of the proceeding or had been the child’s home State within six months before commencement of the proceeding. However, section 9 also provides that “[i]f the petitioner for an initial judgment has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 2109(a).

We strongly disapprove of John’s conduct in forcibly obtaining physical custody of Danny from Kathryn in Michigan and returning him to Illinois. John maintains he used diligence to determine whether any Michigan court had ruled on the child’s custody. Regardless, like the appellate court, we deem John’s actions to be the type of conduct section 9(a) was designed to prevent. The aggrieved spouse is able to request the forum State to decline to exercise jurisdiction so that the wrongful obtaining of custody will not determine the forum for the decision. Had counsel for Kathryn made such a request here, before the court heard the case on the merits in its entirety, she may have had a valid claim. However, no such request was made in the trial court until the closing arguments on January 21, 1981, more than a year later.

We therefore find that because counsel for Kathryn failed to request deference to the Michigan courts prior to the commencement of this proceeding, and since the merits of this case had been heard prior to the request that deference be entertained by the circuit court of Coles County, the court properly rejected such a consideration.

We now ask if the custody award by the trial judge was against the manifest weight of the evidence. We have recited at length the testimony at trial, and we feel that a lengthy commentary on that testimony is not called for here.

The respondent, Kathryn Thompson, argues that Jarrett v. Jarrett (1979), 78 Ill. 2d 337, strongly supports her contention that she should be awarded the child. The respondent asserts that the appellate court ignored the mandate of Jarrett in not addressing the “moral transgressions” of John. Jarrett v. Jarrett (1979), 78 Ill. 2d 337, is authority for the proposition that a child should be placed with the parent who can best serve that child. The Jarrett case does not establish a conclusive presumption that, because a custodial parent cohabits with a member of the opposite sex, the child is harmed. No such presumption exists in this State. The court in Jarrett indicated that a custody award is not arrived at by pressing one lever and mechanically denying custody to one parent; rather all of the circumstances must be considered that affect the best interests of the child. Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 344-45; Ill. Rev. Stat. 1979, ch. 40, par. 602.

A considerable number of witnesses testified on behalf of petitioner indicating Danny was sickly, undisciplined and overweight prior to coming into John’s custody, and that thereafter Danny improved, and a warm, loving relationship developed between the father and the son.

That is not to say we condone all of the father’s conduct. We do not. We recall Ms. Coffman’s testimony that the petitioner threatened to reveal pictures of her in the nude if she testified against him. While such evidence troubles us a great deal, we have determined that such conduct is outweighed by the evidence presented which demonstrates that a healthy relationship existed between father and son and that Danny was doing well in his father’s custody.

Based upon our exhaustive review of the evidence, we find that there has been no showing that the trial court judge abused his discretion in awarding custody of Danny to his father.

The respondent also contends that she should have been permitted to reopen the case prior to the entry of the judgment in the case but after the proofs were closed, in order to allow her to introduce evidence concerning petitioner’s reputation.

In not reopening the case to receive additional evidence, the respondent contends that the trial court abused its discretion. The respondent offers no support for her position, and we find none. The trial court did not abuse its discretion.

We further uphold the appellate court’s judgment respecting the property division, including its remand of the cause to the circuit court of Coles County to require . the petitioner to pay to respondent one-half of a tax-refund check in the sum of $742 that was due respondent. John had previously forged Kathryn’s name on the back of the check and cashed it. He does not presently dispute that Kathryn was entitled to receive $371 of the proceeds of that check.

The respondent did not contest in this court the appellate court’s approval of the circuit court’s sustaining of the objection to her offer of proof of the petitioner’s reputation.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE MORAN,

specially concurring:

I concur in the judgment reached by the majority; however, I do not concur in the statement “The Jarrett case does not establish a conclusive presumption that, because a custodial parent cohabits with a member of the opposite sex, the child is harmed.” (Emphasis added.) (96 Ill. 2d at 78.) In my opinion, Jarrett did establish a conclusive presumption. See the dissent in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 352-53 (Moran, J., and Goldenhersh, C.J., dissenting), and also the dissent of Justice Brennan, joined by Justice Marshall, from denial of the writ of certiorari in Jarrett v. Jarrett (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 329.

JUSTICE UNDERWOOD,

dissenting:

I believe the trial judge abused his discretion in denying the mother’s prejudgment motion to reopen the proofs and present additional evidence.

The majority opinion notes the father’s illicit affairs, abduction of Danny, and threats to the potential witness, but does not mention several other matters which, if true, seem to me quite significant. It is asserted that the father has two children by a prior marriage, a daughter whom he has not seen in nine years and a son whom he has never seen; that he is under a court order to pay $100 weekly for their support; that since the hearing he has lost the employment he held at that time; and that he has instituted bankruptcy proceedings. Certainly proof of these facts would be persuasive on the questions of custody and the father’s ability to support the child.

The dissenting appellate court justice believed the trial court’s award of custody to the father was contrary to the manifest weight of the evidence, a position with which I am inclined to agree. The mother denied or gave rational explanations for the occurrences recited by the majority in support of the result it reaches. For example, the absence of mittens was due to the fact that they were tom from the boy’s hands during the straggle at the time he was abducted by the father. The absence of more frequent contacts by the mother was due, she testified, to her attorney’s advice and her fear of the father, a fear shared by at least one of the father’s sexual partners.

I believe the additional evidence the mother seeks to offer may well tip the scales more clearly in her favor. Consequently, I would reverse the circuit and appellate courts and remand the cause to the circuit court for reconsideration in the light of such additional evidence as may be presented.

JUSTICE GOLDENHERSH joins in this dissent.


author: JUSTICE GOLDENHERSH

text:
    (No. 57017.
    JERRY MAXFIELD v. PAUL E. SIMMONS, Appellant (Walter DeNeal et al., Appellees).

      Opinion filed April 13, 1983.

      Harris, Lambert & Wilson, of Marion, for appellant.
    David W. Hauptmann, of Harrisburg, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant and third-party plaintiff, Paul E. Simmons (Simmons), appealed from the order of the circuit court of Saline County dismissing with prejudice his third-party complaint against Walter DeNeal, doing business as DeNeal Building Supply (DeNeal), and Jesse B. Holt, Inc. (Holt). The appellate court affirmed (107 Ill. App. 3d 341), and we allowed Simmons’ petition for leave to appeal.

On August 16, 1978, Jerry Maxfield filed a complaint against Simmons alleging that the single-family dwelling which Simmons had built for him did not comply with the contract specifications because the roof was constructed in a “poor and shoddy manner as to cause the roof thereon to buckle, bend and dip, and caused the interior ceiling to crack, split at the seams and bulge.” On May 12, 1980, Simmons filed a third-party complaint against DeNeal and Holt. In the third-party complaint as amended, Simmons alleged that if he were found liable to the plaintiff, it would be because the trusses supplied by DeNeal and manufactured by Holt were defective, and alleged that the third-party plaintiff was “entitled to indemnity or contribution from third-party defendants.” Both DeNeal and Holt moved to dismiss the third-party complaint, inter alia, on the ground that the statute of limitations had run against third-party plaintiff Simmons. Holt attached an affidavit of its president, Jesse B. Holt, in which it is stated that the trusses referred to in the third-party complaint were delivered by Holt to DeNeal on April 3, 1974. DeNeal filed an affidavit in which he stated that the trusses were delivered directly by Holt to Simmons on April 3, 1974. The circuit court entered an order dismissing the amended third-party complaint with prejudice on the basis that the four-year statute of limitations contained in section 2—725 of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 2—725) had run.

The appellate court, in three opinions, affirmed. The lead opinion filed by the appellate court, relying on Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, and Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, held that the third-party complaint failed to state a cause of action for the reason that “a stranger to a contract between two parties cannot be compelled to indemnify one of the parties for breach of contract absent the stranger’s express agreement to so indemnify.” (107 Ill. App. 3d 341, 343.) The concurring opinion held that the sale of the trusses “was simply a sale of goods under the Uniform Commercial Code” and that under section 2—725 (Ill. Rev. Stat. 1979, ch. 26, par. 2—725) “any action for breach of any contract for sale must be commenced within four years after the cause of action accrues.” (107 Ill. App. 3d 341, 344 (Earns, P.J., concurring).) The dissenting opinion held that the third-party complaint stated a cause of action and that the cause of action will not ripen until the third-party plaintiff is found liable in the original action. It characterized the action brought by the plaintiff “as one for a tortious breach of contract.” 107 Ill. App. 3d 341, 344 (Welch, J., dissenting).

Simmons contends that when DeNeal sold the trusses he knew or should have known that they were to be used in the roof of a house and that the relationship between Simmons and DeNeal and Holt “gives rise to an implied contract of indemnity.” He argues that Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, is distinguishable in that the plaintiff board of education had separate contracts with each of the defendants, Perkins and Duffy, but there was no relationship of any kind between the defendants. Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, he argues, is not authority contrary to his position for the reason that the court did not consider the tortious relationship as the basis for indemnity.

DeNeal contends that the appellate court correctly held that the statute of limitations contained in the Uniform Commercial Code had run and that the third-party complaint failed to state a cause of action. It argues that there is no allegation of “a qualitative distinction between the conduct of the parties” and that there is no pretort relationship between the parties which could give rise to an implied contract of indemnity.

We have considered DeNeal’s argument based on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, that “The Uniform Commercial Code provided the proper framework for recovery of economic losses and to allow the extension of the tort theories of strict liability, negligence or innocent misrepresentation to cover solely economic losses would, in effect, eviscerate the comprehensive scheme of remedies fashioned by the U.C.C.” We do not view Moorman as controlling here. In Moorman, this court noted that “the law of sales has been carefully articulated to govern the economic relations between suppliers and consumers of goods.” (91 Ill. 2d 69, 78.) The court stated that to adopt strict liability in tort for economic loss would effectively eviscerate section 2 — 316 of the Uniform Commercial Code (Ill. Rev. Stat. 1977,ch. 26, par. 2-316). (91 Ill. 2d 69, 79.) Consistent with the Code’s intent to permit the parties to commercial transactions to provide by agreement for their respective rights and obligations (see Ill. Rev. Stat. 1979, ch. 26, par. 1—102(3); see also comment 2 to this section (Ill. Ann. Stat., ch. 26, par. 1—102, Uniform Commercial Code Comment, at 10-11 (Smith-Hurd (1963))), we refused, in Moorman, by rejecting a cause of action for products liability where only economic injuries were involved, to preclude contracting parties pursuant to section 2—316 from excluding or modifying warranties as they saw fit. Here, the recognition of a cause of action for indemnity does not defeat the purpose of the four-year statute of limitations contained in section 2—725. A single transaction or occurrence, such as an injury caused by a defective product, will typically present the possibility of causes of action sounding in implied warranty, express warranty, negligence, and strict liability. Section 2—725 controls in causes of action based on contract principles, but not in those causes of action based on tort principles. A recognition of this implied right of indemnity does not “eviscerate” the UCC’s statute of limitations contained in section 2—725, since it has no application tó the indemnity cause of action. Where no section of the Code purports to control an issue, section 1—103 (Ill. Rev. Stat. 1979, ch. 26, par. 1—103) provides that the principles of law and equity shall apply to supplement the provisions of the Code. Thus, by the Code’s own mandate, we are not precluded from recognizing Simmons’ implied right of indemnity against DeNeal.

The situation presented here is analogous to that found in a products liability case in which the assembler of the completed product seeks indemnity from the manufacturer of a component part. Under those circumstances this court has held that the assembler of the finished product may seek indemnity. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77.

For the purposes of the motion to dismiss, the allegations of the third-party complaint, as amended, must be taken as true. It is alleged that Simmons denies the allegations in the complaint filed by plaintiff, but states further that in the event that he is indebted to plaintiff the liability would be due to the faulty and defective materials, including the trusses, which were sold by DeNeal and designed, manufactured and sold by Holt. The third-party complaint alleges tortious conduct on the part of DeNeal and Holt sufficient to give rise to the right to indemnification and contribution in that it was the tortious conduct that caused the roof of the house in question to “buckle, bend and dip.” The implied contract of indemnity arose from the contractual relationship between the parties, but the liability, if any, imposed on Simmons will be the result not. of breach of contract, but of tortious conduct. Under the circumstances we fail to perceive why the situation here should differ from that in a products liability case.

We conclude that the third-party complaint states a cause of action, and for the reasons stated the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Judgments reversed; came remanded.


author: JUSTICE GOLDENHERSH JUSTICE MORAN,

text:
    (No. 56327.
    KAREN S. ROBINSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lynn L. Krause et al., Appellees).

      Opinion filed April 13, 1983.

    Rehearing denied May 27, 1983.

      Malato & Stein, P.C., of Chicago (Robert S. Minetz and Sarah S. Hirsen, of counsel), for appellant.
    Matthews, Dean, Eichmeier, Simantz & Hem, EC., of Aurora (Stuart L. Whitt and Roger Eichmeier, of counsel), for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Karen S. Robinson, failed to prove that the automobile accident in which her husband, Walter J. Robinson, lost his life arose out of and in the course of decedent’s employment by respondents, Lynn L. Krause, Thomas A. Allen, and Douglas Allen, co-partners doing business as Allendale Development Company. On review the Industrial Commission affirmed. On certiorari the circuit court of Kane County confirmed and petitioner appealed (87 Ill. 2d R. 302(a)).

The evidence presented at the hearing before the arbitrator showed that at the time of the accident decedent was 35 years of age and employed by respondents as a marketing director. His duties included travel between respondents’ office and sites where respondents were developing new homes. After leaving the office on December 23, 1976, decedent was involved in a one-car accident, approximately two blocks from his home, and suffered injuries which resulted in his death. Petitioner testified that at approximately 5 p.m. on December 23, 1976, decedent called her from the office and told her that he would be leaving the office in a few minutes. Petitioner reminded decedent that he was supposed to take their son Christmas shopping. Decedent told her he had not forgotten, that he would pick up their son on the way to a new subdivision called Red Haw, where he was going to perform some work for respondents, and that he would then take their son Christmas shopping. On a map admitted in evidence petitioner marked the location of the sales office, the scene of the accident, and the Red Haw subdivision. Petitioner testified that the most direct route for her husband to have taken to complete the planned itinerary would be to travel from the office to their home to the Red Haw subdivision and then to the shopping mall. There was no testimony as to decedent’s customary route from the office to Red Haw, but it is undisputed that the route taken when the accident occurred was not the most direct route from the office to Red Haw.

Respondent Lynn Krause, decedent’s supervisor, was called as a witness on behalf of petitioner. Mr. Krause testified that decedent’s duties and responsibilities as marketing director “entailed all aspects of merchandising and selling new homes.” Mr. Krause further testified that decedent’s conduct in stopping by his home to pick up his son on the way to a job site did not violate any of respondents’ rules. Upon questioning by the arbitrator, Mr. Krause stated that in the course of his employment decedent drove his own automobile and was paid a monthly car allowance.

Respondents presented testimony showing that on December 23, 1976, decedent left the office at approximately 12:15 p.m. to have lunch with a friend. During lunch decedent drank approximately two beers. After lunch decedent returned to the office so that he could check his telephone messages. He than left the office to attend the Christmas party of a friend’s employer, a construction company. According to respondents’ evidence, respondents transacted no business with this construction company. During the Christmas party decedent drank several more beers. At approximately 4:45 p.m. decedent returned to the office so that he could check his telephone messages. While at the office decedent made several telephone calls, one of which was the call to his wife.

The arbitrator concluded that decedent was on a personal mission at the time of the accident and denied petitioner’s claim for compensation. On review the Commission, citing Checker Taxi Cab Co. v. Industrial Com. (1970), 45 Ill. 2d 4, affirmed, finding that decedent “was on a personal side trip *** and no longer in the course of his employment at the time of the accident.” The Commission distinguished the cases cited by petitioner “because they deal with factual settings in which the worker was acting under the direction or control of the employer or where the worker was a travelling salesman.”

Petitioner contends that the evidence is undisputed and, citing International Art Studios v. Industrial Com. (1980), 83 Ill. 2d 457, David Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, and Urban v. Industrial Com. (1966), 34 Ill. 2d 159, argues that decedent’s death arose out of and in the course of his employment as a matter of law or, in the alternative, that the Commission’s decision was against the manifest weight of the evidence. Respondents contend that the Commission’s decision was not erroneous as a matter of law, or contrary to the manifest weight of the evidence, for the reason that decedent was on a personal side trip at the time of his death. They assert that the authorities relied upon by petitioner are inapplicable because decedent was neither a traveling salesman nor acting under the direction and control of his employer.

This court has on many occasions been required to consider the question whether accidental injuries sustained by an employee while away from his place of employment are compensable. In Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill. 2d 386, the court said:

“The Workmen’s Compensation Act was not intended to insure employees against all accidental injuries but only those which arise out of acts which the employee is instructed to perform by his employer; acts which he has a common law or statutory duty to perform while performing duties for his employer (Peoria County v. Industrial Com. 31 Ill. 2d 562; see also, Babington v. Yellow Taxi Corp., 250 N.Y. 14, 164 N.E. 726); or acts which the employee might be reasonably expected to perform incident to his assigned duties. Mills v. Industrial Com. 27 Ill. 2d 441, 443; Public Service Co. v. Industrial Com., 395 Ill. 238, 240; Puttkammer v. Industrial Com. 371 Ill. 497.” (32 Ill. 2d 386, 388.)

In Wright v. Industrial Com. (1975), 62 Ill. 2d 65, after quoting from Ace Pest Control, Inc., the court said:

“Under the rationale of the third category, this court has held compensable fatal injuries suffered by traveling employees who were engaged in activities other than those they were specifically instructed to perform by their employers. The test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether it might normally be anticipated or foreseen by the employer. Wexler & Co. v. Industrial Com. [1972], 52 Ill. 2d 506, 510; U.S. Industries v. Industrial Com. [1968], 40 Ill. 2d 469, 475.” (62 Ill. 2d 65, 69-70.)

In Ace Pest Control a termite control operator was killed by a passing automobile while assisting a stranded motorist. In holding that his death arose out of and in the course of his employment the court said that the activities in which he was engaged at the time of his death “were such as might have been reasonably expected or foreseen by his employer.” (32 Ill. 2d 386, 389.) In U.S. Industries compensation was denied on the rationale that the activity was unanticipated, unforeseeable and unreasonable, while in Wexler it was held that the employee’s conduct was reasonably foreseeable.

The testimony shows that the least circuitous route to follow in accomplishing decedent’s objective of picking up his son, visiting the houses at Red Haw and then taking his son to a shopping mall was to go first to his home, then to Red Haw and then to the mall. As previously noted, decedent’s supervisor testified that his action in stopping to pick up his son on the way to the job site did not violate any of respondents’ rules. There is no testimony in the record as to the extent of the deviation which resulted from his first going to his home rather than directly to Red Haw, but from the map in evidence it appears to be insubstantial. Had the accident occurred while the decedent was en route from his office directly to Red Haw there would be no question of compensability, and recovery should not be denied because he performed the reasonable and foreseeable act of stopping on the way to pick up his son.

We find Checker Taxi Cab Co. v. Industrial Com. (1970), 45 Ill. 2d 4, clearly distinguishable. In Checker the claimant driver was authorized to operate only in the city of Chicago and had deviated from his employment to visit a hospital outside the city. Here, the decedent had been given no instructions concerning routes he was to follow.

We hold that the decision of the Industrial Commission is contrary to the manifest weight of the evidence. There appears to be a dispute concerning the amount of benefits to which the petitioner and her children are entitled. The judgment is therefore reversed and the decision of the Industrial Commission is set aside, and the cause is remanded to the Industrial Commission with directions to award workmen’s compensation in the appropriate amount.

Judgment reversed; award set aside; cause remanded, with directions.

JUSTICE MORAN,

dissenting:

I disagree with the majority’s conclusion that because decedent’s trip to his home to pick up his son was reasonable it therefore arose out of and in the course of his employment. The mere fact that one is an outside employee does not ipso facto bring all of his reasonable activities within the course of employment. “Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdiction [sic] to be within the course of their employment continuously during the trip, except when a distinct department on a personal errand is shown.” 1A A. Larson, Workmen’s Compensation sec. 25.00 (1982).

Picking up his son to go Christmas shopping was not in the course of the decedent’s business; rather, it was part of his own personal affairs. “When an employee deviates from his business route by taking a side-trip that is clearly identifiable as such, he is unquestionably beyond the course of his employment while going away from the business route and toward the personal objective ***.” 1A A. Larson, Workmen’s Compensation sec. 19.31 (1982).

The evidence showed, and both the arbitrator and the Commission found, decedent had turned off the closest, direct route to Red Haw and headed toward his home. As such, decedent was on a personal side-trip at the time of his accident and was therefore not in the course of his employment. For this reason, I would affirm the denial of compensation.

RYAN, C.J., joins in this dissent.


author: JUSTICE UNDERWOOD

text:
    (No. 56775.
    LOCAL 7-641, OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, et al., Appellants, v. THE DEPARTMENT OF LABOR et al., Appellees.

      Opinion filed April 22, 1983.

    Rehearing denied May 27, 1983.

      Stephen A. Yokich and Barbara J. Hillman, of Cornfield & Feldman, of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield, and Lawrence I. Kipperman and David F. Johnson, of Sidley & Austin, of Chicago (Michael T. Prousis, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The question presented is whether the employees in this case, who claim that they were “constructively” locked-out by their employer as a result of a labor dispute between the parties, are entitled to unemployment compensation benefits by virtue of the 1975 amendment to section 604 of the Unemployment Insurance Act (Ill. Rev. Stat. 1975, ch. 48, par. 434). A claims adjudicator of the Division of Unemployment Insurance determined that the employees were ineligible for benefits, and the Director of Labor, adopting the report and recommendation of his representative, denied benefits. The circuit court of Cook County affirmed the Director’s decision, and the appellate court affirmed (106 Ill. App. 3d 476). We allowed the plaintiffs’ petition for leave to appeal.

Approximately 140 production, maintenance and laboratory workers who belonged to the Oil, Chemical and Atomic Workers International Union, Locals 7-641 and 7-641A, were employees of defendant Yelsicol Chemical Corporation on December 6, 1977, just prior to the work stoppage. A collective-bargaining agreement between the parties expired at midnight on that date. Prior thereto, there had been some 13 bargaining sessions, and although the parties were able to resolve some of their differences, they failed to negotiate a new collective-bargaining agreement. There were apparently several offers and counteroffers rejected by both sides during the negotiations. On December 6, each side rejected the other’s latest proposed interim offer. After the existing contract expired, the employees did not report to work and pickets appeared at the plant entrance with signs stating that the workers were on strike. Non-union salaried personnel crossed the picket line each day and sometime thereafter restored normal production. A new collective-bargaining agreement was reached on April 8, 1978, and the union employees returned to work. It is these employees who seek unemployment compensation benefits for the period of December 7, 1977, through April 8, 1978.

Although there are certain factual disputes between the parties concerning the merits of the labor dispute and the parties’ respective proposals, there is no disagreement regarding those facts which we deem necessary for resolution of this case under the applicable statutory provision. Section 604 of the Unemployment Insurance Act, in relevant part, provides:

“Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. The term ‘labor dispute’ does not include an individual’s refusal to work because of his employer’s failure to pay accrued earned wages within 10 working days from the date due, or to pay any other uncontested accrued obligation arising out of his employment within 10 working days from the date due. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 434.

There is no question that the employees, during the period for which they claim benefits, were unemployed due to a stoppage of work at Velsicol which existed because of a.labor dispute at that company. Similarly, it is clear that the individual employees were directly interested in the labor dispute which caused the stoppage of work, and no argument to the contrary is made. Plaintiffs do argue, however, that the terms under which they would have been required to work pending continued negotiations — Velsicol’s interim offer — were materially and significantly worse than the status quo and they were therefore constructively locked out. Thus, they conclude that regardless of their participation or interest in the labor dispute, since they were locked out, they are entitled to benefits under the Act. We do not agree. We need not and do not decide the factual dispute between the parties concerning whether the terms of Velsieol’s final or interim offer were onerous or significantly worse than the terms of the existing contract. Regardless of whether the individual plaintiffs and other members of the plaintiff union involved in the labor dispute were strikers or constructively locked out employees, we hold that they are ineligible for benefits under the Act because they were directly interested in the labor dispute which caused the stoppage of work.

The term “labor dispute” has been defined in previous decisions as “any controversy concerning wages, hours, working conditions or terms of employment” (Buchholz v. Cummins (1955), 6 Ill. 2d 382, 387, citing Local Union No. 222 v. Gordon (1950), 406 Ill. 145, 150; Fash v. Gordon (1947), 398 Ill. 210, 216; Local Union No. 11 v. Gordon (1947), 396 Ill. 293, 299), and under our act a labor dispute includes a lockout as well as a strike (Buchholz v. Cummins (1955), 6 Ill. 2d 382, 387-88). The labor-dispute disqualification contained in our act, which is not uncommon (Dienes v. Holland (1979), 78 Ill. 2d 8, 12), evinces the legislative determination that the State is to remain neutral in labor disputes and collective bargaining, rendering assistance to neither the employer nor labor. (General Motors Corp. v. Bowling (1981), 85 Ill. 2d 539, 546; Buchholz v. Cummins (1955), 6 Ill. 2d 382, 386.) Acceptance of plaintiffs’ arguments here, where the employees are directly interested in the work stoppage, would require our increased involvement in labor disputes, a determination of the reasonableness of the parties’ bargaining positions, and awarding or denying benefits accordingly. We cannot believe that the legislature intended, by adopting the 1975 proviso, to thereby nullify this State’s firmly established policy of neutrality. There is nothing in the legislative debates to indicate any intent to make a change of such magnitude. We think it is apparent from the language of the amendment, the primary source for interpretation (Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 292; Illinois Telephone Association v. Illinois Commerce Com. (1977), 67 Ill. 2d 15, 20), that the legislature did not so intend.

The pertinent language is as follows: “provided, that a lockout by the employer or an individual’s failure to cross a picket line *** shall not, in itself, be deemed to be participation by him in the labor dispute.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 434.) We agree with the appellate court that the phrase “in itself” is significant. Had the legislature intended to compensate locked-out employees who were directly involved in the underlying labor dispute, it could have expressly excluded a lockout, constructive or otherwise from the definition of labor dispute, or it could have plainly stated that the disqualification would not apply if the employee was locked out, thus making it apparent that a lockout would henceforth be treated as a distinct type of labor dispute. In the minority of States that have chosen to so characterize a lockout, the language of the statute is clear. Typically, the statute provides that an individual is ineligible for benefits if his unemployment is due to a stoppage of work which exists because of a labor dispute “other than a lockout.” E.g., Ohio Rev. Code Ann. sec. 4141.29(D)(1)(a)(1980); 43 Pa. Stat. Ann. sec. 802(d) (1964); see also Ky. Rev. Stat. sec. 341.360(1) (1982 Supp.) (“[A] lockout shall not be deemed to be a strike or a bona fide labor dispute and no worker shall be denied benefits by reason of a lockout”); Minn. Stat. Ann. sec. 268.09(3)(b) (1982 Supp.) (“Nothing in this subdivision shall be deemed to deny benefits to any employee: *** (b) who becomes unemployed because of a lockout”); see generally Annot., 62 A.L.R.3d 437 (1975); Lewis, The Lockout Exception: A Study in Unemployment Insurance Law and Administrative Neutrality, 6 Cal. Western L. Rev. 89 (1969).

Prior to the amendment, an employee who failed to cross a picket line of another labor organization of the employer because of “respect” for that picket line was not entitled to benefits though he otherwise had no interest in or connection with the labor dispute. (Sangamo Electric Co. v. Donnelley (1962), 26 Ill. 2d 348; American Brake Shoe Co. v. Annunzio (1950), 405 Ill. 44.) The act of honoring the picket line, by itself, amounted to “participation” by the employee in the labor dispute, thus making him ineligible for benefits. As we stated in Owens-Illinois, Inc. v. Bowling (1983), 95 Ill. 2d 397, a case also decided this term, the “proviso” was intended to overturn those decisions. We do not believe, however, that the legislature intended also to overturn the decision in Buchholz or the neutrality policy of this State by allowing benefits to locked-out employees who are directly involved in the labor dispute which caused the lockout. Rather, it seems clear that the legislature intended only that a locked-out employee, like the employee who honors the picket line, who is otherwise not participating in, financing or directly interested in the labor dispute which caused the work stoppage would not be deemed a “participant” in the labor dispute.

For the reasons stated, the appellate court’s judgment is accordingly affirmed.

Judgment affirmed.