author: JUSTICE CLARK

text:
    (No. 56148.
    FRANCISCAN SISTERS HEALTH CARE CORPORATION, Appellant, v. JOHN R. DEAN, Indiv. and as Ex’r, et al., Appellees.

      Opinion filed April 22, 1983.

      Hardin W. Hawes, of Sebat, Swanson, Banks, Lessen & Carman, of Danville, for appellant.
    F. Daniel Welsch, of Young, Welsch, Young & Hall, of Danville, for appellees.
   JUSTICE CLARK

delivered the opinion of the court:

Defendant John R. Dean prepared Mrs. Elizabeth Messmer’s final will on February 7, 1978. After making two small specific bequests the will further provided:

“All the rest and residue of my estate, personal and mixed, I give, devise and bequeath in equal parts among them to St. Elizabeth Hospital of Danville, Illinois and my long time friend and advisor John R. Dean, or his heirs.”

Mrs. Messmer died in St. Elizabeth Hospital on April 10, 1979, at the age of 97, and the will was admitted to probate shortly after Mrs. Messmer’s death. The hospital’s and Dean’s shares were each worth approximately $130,000. The plaintiff, Franciscan Sisters Health Care Corporation, doing business as St. Elizabeth Hospital, filed suit, seeking to invalidate the entire will, alleging that Dean as the attorney who drafted the instrument had presumptively exercised undue influence in obtaining his legacy. Mr. Dean admitted in his pleadings and stipulated at trial that a presumption of his undue influence over the testator had been raised. Finding that Dean had not overcome the presumption of undue influence, the circuit court of Vermilion County invalidated the will. Dean appealed that decision and argued before the appellate court that the trial court had misunderstood the effect of the presumption and that the evidence he presented rebutted it.

The appellate court, in a split decision, concluded that the evidence was sufficient to rebut the presumption but that the inference of undue influence remained. The appellate court remanded the cause to the trial judge as the trier of fact to assess the strength of the evidence. (102 Ill. App. 3d 61.) We granted the plaintiff’s petition for leave to appeal (73 Ill. 2d R. 315). We now affirm the decision of the appellate court.

Because the strength of the evidence is a primary focal point in this appeal, we find it necessary to carefully review the evidence adduced at trial. At the outset, the parties agreed that an attorney-client relationship existed between Dean and Mrs. Messmer and that he had prepared the contested will and had it typed in his office. Because Dean received a substantial legacy under the terms of the will, the circuit court judge ruled that there was a presumption of undue influence before any testimony was heard.

Mr. Dean had known Mrs. Messmer long prior to the day the contested will was prepared. They had known each other socially for over 20 years. He acted as Mrs. Messmer’s lawyer for the last few years of her life. Dean and his family had vacationed with the testator, dined with her, and visited her on holidays.

After preparation of the will in Mr. Dean’s office on February 7, 1978, Dean went down the hall to the offices of attorney Edward Litak. Dean informed Litak that he had prepared a will for a client in which he, Dean, was quite a substantial beneficiary and that he wanted Litak and his secretary, Julie Hembrey (18 years old) to witness the will and to talk to the testator about it.

Dean then went back to his office and brought Mrs. Messmer to Litak’s office. After introducing Mrs. Messmer to Mr. Litak, he left the office. Mr. Litak and Ms. Hembrey spent the next 15 to 20 minutes asking Mrs. Messmer if she understood what she was doing and if she knew that Mr. Dean was receiving a substantial amount.

Both Mr. Litak and Ms. Hembrey testified that they believed that at the time Mrs. Messmer executed the will she was of sound mind, acting freely and voluntarily, and under no duress of any kind. The will was executed in Litak’s office after their conversation. Ms. Hembrey then went and notified Mr. Dean, who subsequently returned to Litak’s office. Mrs. Messmer and Mr. Dean then left together.

Shortly after the execution of the will, Mrs. Messmer moved to a nursing home, where she remained confined for several months, up until approximately two days before her death. While the Dean family’s social contacts with Mrs. Messmer remained substantially the same for 20 to 25 years, the family did visit Mrs. Messmer more frequently during the last three months of her life.

About six days before she died, Mrs. Messmer became upset with Mrs. Dean as the result of a conversation they had at the nursing home. Mrs. Messmer wanted around-the-clock nursing care because she was nearly blind, could not see to feed herself, and had difficulty swallowing. Mrs. Dean indicated to Mrs. Messmer that it was not necessary to spend that kind of money since she was being adequately taken care of at the nursing home.

Shortly thereafter Mrs. Messmer asked a nursing home employee to call Mr. Robert B. Acton, an attorney who had formerly represented her and whom she had known for many years, for the purpose of asking him to come to the nursing home. Mr. Acton came and spoke with Mrs. Messmer. According to Mr. Acton, Mrs. Messmer told him that she wanted nothing more to do with Mr. Dean.

As a result of that conversation, Mr. Acton prepared a power of attorney, granting the Second National Bank of Danville the power to manage her affairs. Mrs. Messmer subsequently signed the document and died soon thereafter.

At the hearing, several of Mrs. Messmer’s prior wills were introduced into evidence by the plaintiff in attempting to show a pattern of growing influence of Dean over Mrs. Messmer. In the seven years prior to her death, she executed four wills and a codicil. The first was prepared by attomey Robert Acton and dated March 10, 1972. In it, Mrs. Messmer divided her estate between St. Elizabeth Hospital of Danville and St. Paul Elementary School. In the event that the school was not in operation at the time of her death, that part was to be given to the hospital. She appointed a friend, Norman M. Dale, as executor and the Second National Bank of Danville as successor executor.

The second will was also prepared by Mr. Acton and was dated November 25,1974. In it, she gave Norman M. Dale a small bequest and the residue of her estate to the hospital. Again, she appointed Norman M. Dale as executor and the Second National Bank of Danville as successor executor.

After the execution of the 1974 will, a legal conflict arose and Mr. Acton asked Mrs. Messmer to obtain other counsel to represent her in a loan transaction involving Mrs. Messmer and another of Mr. Acton’s clients. Mrs. Messmer sought Mr. Dean’s services.

Mr. Dean prepared for Mrs. Messmer the third will dated September 22, 1975. In it, she gave Mr. Dean her safe and its contents. She gave two friends some furniture and again gave the residue of her estate to St. Elizabeth Hospital. She appointed the Second National Bank as executor and instructed the bank to use Mr. Dean as her estate’s attorney.

Mr. Dean prepared a codicil dated March 4, 1976. In it, Mrs. Messmer changed the executor of her will from the bank to Mr. Dean. The will of September 1975 remained the same in all other aspects. Finally, Mr. Dean prepared and Mrs. Messmer executed on February 7, 1978, the last document, which is the subject of this will contest.

Mr. Dean had also prepared the testator’s 1975 through 1978 income tax returns. In November of 1978, Mrs. Messmer executed an authorization for Mr. Dean to enter her safety deposit box. Sometime thereafter, according to Mr. Acton, Mrs. Messmer asked him to obtain from Dean the return of the key to that box. The record does not show why Mrs. Messmer wanted to procure the key. While Mr. Dean indicated that he would return the key to Mr. Acton, he never did.

This court has defined undue influence to be “any improper *** urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would do if left to act freely.” (Powell v. Bechtel (1930), 340 Ill. 330, 338.) To set aside a will, this court has found that the undue influence “must be of such a nature as to destroy the testator’s freedom concerning the disposition of his estate and render his will that of another.” (Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 181.) It is important to understand what one faces when suing to invalidate a will that complies with the statutory prerequisites.

Mr. Dean does not dispute the fact that because he drafted the will and stands to gain a substantial legacy from it, a presumption of undue influence has been raised. At issue here is what is required to rebut such a presumption and whether that requirement was met.

In Diederich v. Walters (1976), 65 Ill. 2d 95,100-03 (hereafter Diederich), this court addressed the approach taken in courts of this State concerning the effect of presumptions:

“The determination of whether a jury should be instructed as to the existence of a presumption must be made by the trial court in the context of the facts and circumstances of each case with reference to the applicable law, the evidence, other instructions and the particular nature and procedural effect of the presumption itself. With regard to the procedural effect of presumptions, most jurisdictions in this country follow the rule that a rebuttable presumption may create a prima facie case as to the particular issue in question and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption. However, once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. (See 1 Jones, Evidence sec. 3:8 (6th ed. 1972).) The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. Consistent with this view, Dean Wigmore states in his treatise on evidence that ‘the peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule ***.’ (9 Wigmore, Evidence sec. 2491, at 289 (3d ed. 1940).) As stated in Jones on Evidence, ‘since the presumption loses its force when evidence is introduced against it, it would naturally follow that no mention of the presumption would be made in the instructions to the jury, and the issue is submitted without any knowledge on the part of the jury of the special legal significance of the basic facts from which the presumption originally arose.’ 1 Jones, Evidence sec. 3:9 at 146 (6th ed. 1972).
* * *
The prevailing view that a presumption ceases to operate in the face of contrary evidence has generally been followed in Illinois. As was stated by this court in Coal Creek Drainage and Levee District v. Sanitary District (1929), 336 Ill. 11,31, and restated in numerous subsequent decisions: ‘A presumption is not evidence and cannot be treated as evidence. It cannot be weighed in the scale against evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered the presumption vanishes entirely.’ (See, e.g., Lohr v. H. Barkmann Cartage Co. (1929), 335 Ill. 335; Bollenbach v. Bloomenthal (1930), 341 Ill. 539; Miller v. Pettengill (1945), 392 Ill. 117.) More recently in McElroy v. Force (1967), 38 Ill. 2d 528, 532-33, we stated: ‘A rebuttable presumption, such as exists here, is not evidence in itself, but arises as a rule of law or legal conclusion from the facts proved. (Osborne v. Osborne, 325 Ill. 229; Brown v. Brown 329 Ill. 198; Trustees of Schools v. Lilly, 373 Ill. 431.) These presumptions “do not shift the burden of proof. Their only effect is to create the necessity of evidence to meet the prima facie case created thereby, and which, if no proof to the contrary is offered, will prevail.” (Helbig v. Citizens’ Insurance Co., 234 Ill. 251, 257; accord, Brown v. Brown, 329 Ill. 198; Johnson v. Pendergast, 308 Ill. 255.) Stated differently, the presence of a presumption in a case only has the effect of shifting to the party against whom it operates the burden of going forward and introducing evidence to meet the presumption. If evidence is introduced which is contrary to the presumption, the presumption will cease to operate. (Osborne v. Osborne, 325 Ill. 229; Lohr v. Barkmann Cartage Co., 335 Ill. 335; Miller v. Pettengill, 329 Ill. 117.) ***’ ”

In the passage above from Diederich, the court says, “ '*** These presumptions “do not shift the burden of proof.” ’ ” The appellate court was correct in construing the term “burden of proof” here narrowly to mean burden of persuasion, since the term “burden of proof” encompasses both the burden of producing evidence that will satisfy a judge of the existence of an alleged fact and the burden of persuading the trier of fact that the alleged fact is true. (McCormick, Evidence sec. 336, at 783-84 (2d ed. 1972).) The burden of persuasion does not shift but remains with the party who initially had the benefit of the presumption. In the instant case, the burden of production shifted to the defendant once the presumption of undue influence arose. If the presumption is then rebutted the burden of production shifts back to the plaintiff.

The prevailing theory regarding presumptions that Illinois follows and Diederich speaks about is Thayer’s bursting-bubble hypothesis: once evidence is introduced contrary to the presumption, the bubble bursts and the presumption vanishes. (McCormick, Evidence sec. 345, at 821 (2d ed. 1972); see Coal Creek Drainage & Levee District v. Sanitary District (1929), 336 Ill. 11.) It is consistent with the Thayer approach that the party producing evidence to rebut the presumption must come forward with evidence that is “sufficient to support a finding of the nonexistence of the presumed fact.” (Graham, Presumptions in Civil Cases in Illinois: Do They Exist? 1977 S. Ill. U. L.J. 1, 24.) If Dean had offered no evidence to rebut the presumption of undue influence, the plaintiff would have been entitled to a judgment as a matter of law. Once the presumption had been raised, the burden of production shifted to Dean. While Diederich said that, “*** ‘[i]f evidence is introduced which is contrary to the presumption, the presumption will cease to operate ***’ ” (65 111. 2d 95, 102), the court did not indicate what quantum of evidence would be necessary.

The amount of evidence that is required from an adversary to meet the presumption is not determined by any fixed rule. A party may simply have to respond with some evidence or may have to respond with substantial evidence. If a strong presumption arises, the weight of the evidence brought in to rebut it must be great. 5 A.L.R.3d 19, 39 n.14 (1966).

Wunderlich v. Buerger (1919), 287 Ill. 440, involved a will contest where an attorney had drafted a will for his client and received a substantial bequest under the will. In discussing the amount of evidence necessary to overcome the presumption of undue influence the court said:

“The strength of the presumption and the amount of proof required to overcome it must depend upon the circumstances of each case.” 287 Ill. 440, 445.

The court went on to say that in the circumstances the court was confronted with there, the evidence must be “convincing that the instrument is the free expression of the wish of the testator and not of the will of the fiduciary.” 287 Ill. 440, 446.

A later pronouncement of this court in a will-contest case came in Tidholm v. Tidholm (1945), 391 Ill. 19, where the court said that when a presumption of undue influence arises it “casts upon the proponent, if he is to sustain the will, the necessity of showing that the execution of the will was the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary. (Seavey v. Glass, 315 Ill. 611; Wunderlich v. Buerger, 287 Ill. 440; Snyder v. Steele, 287 Ill. 159; Gum v. Reef, 275 Ill. 503.) This, however, does not change the general rule, which is, that upon the whole case, the burden of proof is upon the contestant to establish undue influence by the whole evidence. Weston v. Teufel, 213 Ill. 291.” 391 Ill. 19, 25-26.

We find the language of the court used in Tidholm and Wunderlich supported by the line of disciplinary cases where we have required attorneys to come forward with clear and convincing evidence that they are not defrauding or unduly influencing their clients. (In re Barrick (1981), 87 Ill. 2d 233; In re Saladino (1978), 71 Ill. 2d 263; see In re Vogel (1982), 92 Ill. 2d 55.) While it is true that those cases arose in the context of disciplinary proceedings and are not attempting to set forth any standards to articulate what is required to rebut a presumption of undue influence, they are nevertheless helpful in demonstrating how closely this court scrutinizes allegations involving attorneys’ conduct with their clients and specifically attorneys’ drafting of wills in which they benefit from a provision of the will.

In Rizzo v. Rizzo (1954), 3 Ill. 2d 291, this court reviewed a fiduciary relationship arising out of a partnership. After finding that a fiduciary relationship existed and the defendants benefited from it, the court determined that a presumption of undue influence arose from the confidential relationship of the partnership, since the dominant party had enjoyed a benefit due to his fiduciary status. That presumption having been raised, the court determined that the beneficiary must produce clear and convincing evidence in order to rebut that presumption. 3 Ill. 2d 291.

The potential for abuse is great where an attorney drafts a will and stands to benefit from that will. Clients may often depend upon their attorneys for both financial and legal advice. As the relationship of attorney-client grows, a sense of trust develops and is strengthened between the two parties. This trust can be abused by an unscrupulous attorney, and we feel it is usually unnecessary for lawyers to prepare clients’ documents under which they benefit. Almost always, a third party is available who can intervene and provide a disinterested perspective.

We therefore feel that as matter of public policy an attorney in such a situation must provide “clear and convincing” evidence to rebut the presumption of undue influence once it has been raised.

We now find that measured by a “clear and convincing” standard, the evidence brought forward by Mr. Dean was sufficient to rebut the presumption of undue influence. The appellate court was correct in recognizing the critical question to be Mrs. Messmer’s state of mind on February 7, 1978, the day that she signed the will. (Sterling v. Dubin (1955), 6 Ill. 2d 64, 72.) The time the will was executed is the period we must scrutinize; what Mrs. Messmer felt on a prior occasion or at a later date is irrelevant.

It was established that although the testator was old, she was alert and intelligent. She managed her own personal and business affairs prior to and during the period in which the contested will was executed.

Both Mr. Litak and Ms. Hembrey concluded that the will represented Mrs. Messmer’s wishes. It is important to recall that this assessment was made after considerable questioning of Mrs. Messmer, in the office of Mr. Litak without Mr. Dean being present. Litak asked the testator what her relation to Dean was; whether the substantial gift to Dean was in accordance with her wishes; and whether Dean or anyone else had suggested the gift or pressured her into making it. Litak and Hembrey were convinced that she was aware that Mr. Dean was made a substantial beneficiary under the will and that is what she wanted to do. We conclude that the evidence Mr. Dean presented is sufficient to overcome the presumption of undue influence. In accord with Thayer’s theory in effectively rebutting the presumption, the “bubble” has burst and the presumption of undue influence has vanished.

Sufficient evidence has been produced to rebut the presumption of undue influence as a matter of law. However, the judge as the trier of fact must now weigh the evidence and consider any and all reasonable inferences that can be drawn from these facts, including the possible inference of undue influence. Our decision here affirms the appellate court, which held that after the presumption is rebutted as a matter of law “[w]hat remains is a factual question, and we remand the cause to the trial judge as trier of fact to assess the strength of the evidence.” (102 Ill. App. 3d 61, 70.) We direct that the circuit court hear additional evidence as to whether Mr. Dean in fact exercised undue influence on Mrs. Messmer in the drafting of her will which provided a substantial beneficial interest to him.

The judgment of the appellate court is affirmed insofar as it reversed the judgment of the circuit court. We remand to the circuit court so that the trier of fact can weigh the evidence in deciding the factual question with which we are left.

Affirmed and remanded, with directions.


source: Caselaw Access Project

author: JUSTICE WARD JUSTICE SIMON,

license: Public Domain

text:
    (No. 56568.
    CARMEN F. GARCIA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Del Monte Corporation, Appellee).

      Opinion filed April 22, 1983.

      Theodore J. Craig, of Rochelle, for appellant.
    Fearer & Nye, of Rochelle (James G. Ahlberg, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Carmen F. Garcia filed a claim under the Workmen’s Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries that she alleged were sustained in a fall on October 2, 1978, while upon her employer’s premises. On April 24, 1980, an arbitrator filed his decision denying an award. On April 28, 1980, the claimant filed a petition for review of the arbitrator’s decision with the Industrial Commission. On May 1, 1980, the arbitrator recalled his decision and issued a corrected decision which eliminated an inconsistency, not relevant here, which appeared in his earlier decision and which also denied the employee’s claim for an award. Neither the claimant nor the employer filed a petition for review of the corrected decision with the Commission. The Commission ruled that it was without jurisdiction to review the arbitrator’s corrected decision and that, by operation of section 19(b) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)), the corrected decision had become the final decision of the Commission. The circuit court of De Kalb County confirmed the action of the Industrial Commission, and the claimant brought a direct appeal to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

Section 19(f) of the Act, in part, provides:

“[T]he Arbitrator *** may on his *** own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator *** and shall have the power to recall the original award on arbitration *** and issue in lieu thereof such corrected award or decision. Where such correction is made the time for *** review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f).)

The arbitrator issued a corrected decision within 15 days of his original decision on April 24, 1980. As provided by section 19(f), the claimant had 15 days from receipt of the corrected decision within which to contest the denial of her claim. Since neither she nor her employer filed a petition for review of the corrected decision, it became the decision of the Commission without review and is “conclusive” of the dispute between the parties, as the Act provides. (See Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b).) The claimant’s petition for review of the original decision was without effect because the issuance of the corrected decision made the original decision a nullity.

The claimant acknowledges that her omission in failing to petition for review of the corrected decision bars review by the Industrial Commission. She contends, however, that the circuit court and this court as well should review the merits of her claim. We must disagree. As stated, under section 19(b), the arbitrator’s corrected decision became the decision of the Commission and is conclusive of the dispute. The corrected decision is “conclusive” because only proceedings to review final orders of the Industrial Commission may be considered by the courts. (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 187.) Since the Industrial Commission was without jurisdiction to review the corrected decision, the circuit court, and likewise this court (see 73 Ill. 2d R. 302(a)(2)), lack jurisdiction. Sweitzer v. Industrial Com. (1946), 394 Ill. 141; City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99.

Our recent decision in PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill. 2d 438, is relevant. In PPG Industries, which involved a similar situation, except that it was the employer that sought review of the arbitrator’s decision, we held that the petition for review filed regarding the arbitrator’s original decision could not serve as a petition to review the corrected decision. Consequently, we affirm the circuit court’s judgment confirming the Commission’s adoption of the corrected decision. See also Simpson v. Industrial Com. (1982), 91 Ill. 2d 452.

For the reasons given, the judgment of the circuit court of De Kalb County confirming the action of the Industrial Commission is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

I do not agree that the minor change that was made in the arbitrator’s decision in this case was sufficient to render Ms. Garcia’s petition for review in the Industrial Commission ineffective. I would reverse the circuit court judgment and remand the cause to the Industrial Commission for normal review proceedings.

Neither case law nor common sense compels the result reached by the majority. Section 19(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)) gives petitioners 15 days from the time of receipt of an arbitrator’s decision to appeal that decision to the Industrial Commission, and section 19(f) (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)) permits an arbitrator “on his *** own motion, or on the motion of either party, [to] correct any clerical error or errors in computation *** and *** recall the original award on arbitration *** and issue in lieu thereof [a] corrected award or decision” (emphasis added), such correction beginning anew the 15-day period for appeal. The statute speaks of recalling the decision or award and substituting something different in its place, or of considering a request by one of the parties that such an alteration be made. Implicit in that is the idea that the change that is made or argued for be a material one, going to the substance of the award or decision or at least to the rationale behind it. The cases cited by the majority are consistent with this narrow interpretation of section 19(f) and do not support the result reached here. In PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill. 2d 438, the arbitrator enlarged the period for which temporary total disability benefits were being awarded from 17 weeks to 26 2/t weeks. In International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, the petition for certiorari was filed while the employer’s request for correction of the amount of the award was still under consideration by the Industrial Commission.

In this case there was no request by either party that the arbitrator correct his decision, and the correction that was made had nothing to do with the amount or substance of the award or with the arbitrator’s reasons for denying benefits. The arbitrator’s decision as corrected read:

“CORRECTED NOTICE OF DECISION AND DECISION OF ARBITRATOR
Take notice that on April 24, lOSOy May 1, 1980, the decision of the Arbitrator set forth below, was filed with the Industrial Commission.
Notice and -amended- application for adjustment of claim having been filed in the above entitled matter, and Ray Rybacki having been designated by said Commission as Arbitrator thereof and said matter having come on to be heard before said Arbitrator at City Hall in the City of DeKalb, said County and State, on March 10, 1980, and prior thereto, and after hearing the proofs and allegations of the parties hereto, and having made careful inquiry and investigation of said matter and being fully advised in the premises said Arbitrator finds:
That on October 2, 1978, the Respondent Del Monte Company, was operating under and subject to the provisions of the Illinois Workmen’s Compensation Act; that on said date the relationship of employee and employer existed between the Petitioner Carmen F. Garcia and said Respondent; that on the date last above mentioned said Petitioner sustained accidental injuries arising out of-and-■in the coarse - of the employment; and that notice of said accident was given said Respondent within the time required under the provisions of said Act.
That the earnings of the Petitioner during the year next preceding the injury were $4,039.96 $1,610.00 and that the average weekly wage was $89.23.
That Petitioner at time of injury was 49 years of age, single and had 7 children under 18 years of age.
That necessary first aid, medical, surgical and hospital services have been partially provided in part by the Respondent herein.
The Arbitrator further finds from the evidence adduced that said Petitioner failed to prove that the injuries sustained on October 2, 1978, were sustained in the course of her employment by the Respondent herein.
Said application, therefore, is hereby dismissed and claim for compensation;-í/iereró is hereby denied.
That no compensation has been paid on account.....of-3aid injury.
You are further notified that unless a petition for review is filed with the Industrial Commission within fifteen (15) days after receipt of this decision and a review perfected in accordance with the Workmen’s Compensation Act and the Rules of the Industrial Commission, then the decision of the Arbitrator shall be entered as the decision of the Industrial Commission.
DATED and ENTERED this date March 22, 1980. May 5, 1980.
Ray Rybacki ARBITRATOR.”
(Deletions from original indicated by strikeouts; additions in italics.)

Aside from such purely technical changes as the altered date of the decision and the insertion of the word “surgical,” the only changes that meet the eye are the deletion of the sentence reciting that no workers’ compensation benefits had been paid by the employer, the four-cent change in Ms. Garcia’s 1978 wage figure, and the deletion of the phrase “in the course of” from the third paragraph so as to remove the inconsistency between that paragraph and the seventh paragraph. The first two alterations effected no change in the substance of the decision that was the subject of the appeal. It did not matter what Ms. Garcia’s wages were or what medical or surgical expenses were paid in view of the arbitrator’s holding that the accident was not compensable because it did not arise in the course of the employment. The third change might have served to clarify this holding somewhat, but nobody asked for the correction, presumably because the parties found the arbitrator’s rationale to be clear. The decision, both in its original form and as corrected, set forth the finding that the accident did not occur in the course of the .employment as the sole reason for denying the claim for compensation. I do not believe either that the arbitrator’s reason could have been misunderstood, even under the original wording, or that the essence of the decision which was the subject of Ms. Garcia’s petition for review was changed by the correction. That decision, the reason for the decision and the consequences of the decision all remained the same.

While I agree that “[t]he purpose of section 19(f) is to provide the Commission an opportunity to correct its own clerical or computational errors so as to avoid the necessity of having the circuit court review such errors” and reduce the number of issues that -will be urged for review in the courts (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 186; see Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131), I fail to see what purpose is served by forcing the parties to refile their petitions for review where the corrections that are made are as insubstantial and technical as the ones made here. No one asked for the corrections, and I see no evidence that Ms. Garcia either saw any ambiguity in the arbitrator’s original decision or sought to challenge that decision as being ambiguous. Proceedings before the Industrial Commission and appeals from decisions of arbitrators should not be cloaked with technicalities as needless as the majority imposes here. The Industrial Commission’s refusal to entertain her petition was, in my judgment, in error, and I would remand the cause to the Commission for a hearing.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 56861.

      In re MARRIAGE OF BARBARA J. DAVIES, Appellee, and JOHN A. DAVIES (William E. Jegen, Adm’r, Appellant).

      Opinion filed April 22, 1983.

      William E. Jegen, Peter R. Vogel, and Kurt A. Carlson, of Jegen & Carlson, of Glen Ellyn, for appellant.
    Seymour C. Axelrood and Paul Ben Axelrood, of Se-well, Axelrood & Moran, of Chicago (David A. Novoselsky, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

John A. Davies was the defendant in a contested marriage-dissolution action filed by plaintiff, Barbara J. Davies, in the circuit court of Du Page County. The trial court, electing to proceed in the bifurcated manner seemingly permitted under section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(3)), entered a judgment dissolving the marriage and expressly providing that marital-property rights and related matters would be resolved after a separate hearing. Defendant died prior to entry of judgment on the property and related questions, and the trial judge subsequently entered a supplemental judgment order concerning property and maintenance rights. Plaintiff appealed, both judgments were reversed by the appellate court (105 Ill. App. 3d 661), and we granted the petition for leave to appeal filed by the administrator of defendant’s estate.

The facts of this case are relatively simple. Plaintiff filed an amended petition for dissolution of marriage on April 30, 1979, and, following a hearing, the trial judge entered a judgment of dissolution on October 9. That judgment order did not purport to deal with marital-property rights or related rights, but instead provided that such rights would be the subject of further proceedings. The major dispute concerning marital property centered on the distribution of the shares of the John Davies Corporation, which the parties held as joint tenants, and the division of vested pension rights acquired by plaintiff from her former employment and held to be marital property. The parties were the sole shareholders of the stock of the John Davies Corporation. After conducting a hearing, the trial court issued an opinion letter to the attorneys for both parties which provided that all marital property should be equally divided. Although that letter was dated on March 28, 1980, it was not filed of record until April 9. In his letter, the trial judge also directed plaintiff’s attorney to prepare a judgment order conforming with the terms of his letter and to present the order for entry on or after April 7.

Before that order was entered, however, defendant’s attorney suggested of record the death of defendant which occurred on April 8. After considering briefs submitted by the parties which addressed the effect upon the pending action of defendant’s death, the trial judge issued another letter to the attorneys on October 21, which indicated that defendant’s death would not have any impact on the status of the proceedings. On February 19, 1981, the trial judge entered a supplemental judgment order nunc pro tunc as of March 28, 1980, which determined the rights of the parties in accordance with the terms of his opinion letter of that date.

After unsuccessfully petitioning the trial court to set aside all of the dissolution-of-marriage proceedings, plaintiff prevailed in the appellate court, which reversed both the dissolution judgment and the supplemental judgment. (105 Ill. App. 3d 661.) The appellate court held that section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(3)), which was amended in 1981 to retrospectively impart validity to all dissolution judgments entered in bifurcated proceedings, could not constitutionally be retrospectively applied. Accordingly, resting on one of its own recent decisions (In re Marriage of Cohn (1981) , 94 Ill. App. 3d 732) that dissolution judgments entered as a part of bifurcated proceedings were not final in nature, and a determination that the nunc pro tunc order was ineffective because the trial judge’s opinion letter did not constitute a judgment, the appellate court concluded that the cause had abated when respondent died.

There are in this case two questions requiring our consideration: Is plaintiff, having acquiesced in the bifurcated proceeding, now free to assert its invalidity? If not, did defendant’s death prior to the entry of final judgment cause the proceedings to abate?

Plaintiff, asserting, as the appellate court held, that the judgment of dissolution entered in her favor was improperly rendered, urges this court to declare that judgment and all of the subsequent proceedings void. The appellate court’s conclusion that amended section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(3)) could not constitutionally be applied to validate the judgment was confirmed by our recent decision in In re Marriage of Cohn (1982), 93 Ill. 2d 190. Nevertheless, we find it unnecessary to examine the propriety of the judgment, which was entered at plaintiff’s behest. Our opinion in Cohn made entirely clear the possibility that any error in bifurcating dissolution proceedings could be waived. Throughout most of the trial court proceedings in this case, plaintiff acquiesced in the dissolution judgment, failing to challenge its validity even when asked to present a brief evaluating the status of the action following defendant’s death; indeed, plaintiff did not question the validity of the dissolution judgment until after the trial court had entered its supplemental and final judgment disposing of the property questions and purporting to end the proceedings. As this court has previously noted, “[pjarties cannot blow hot and cold in a lawsuit.” (Henry v. Metz (1942), 382 Ill. 297, 306.) By waiting to object to bifurcation until she learned the court’s decision on the property issues, plaintiff has, in effect, invited any error which might inhere in the dissolution judgment and cannot now be heard to complain of it. See Catalano v. Pechous (1980), 83 Ill. 2d 146, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981; Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206; Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570; People v. Van De Rostyne (1976), 63 Ill. 2d 364.

Generally, the death of a party during the course of divorce proceedings has been held to abate the action. (Tuttle v. Gunderson (1930), 341 Ill. 36; Bushnell v. Cooper (1919), 289 Ill. 260; In re Estate of Chandler (1980), 90 Ill. App. 3d 674.) This court has recognized, however, that there is no abatement upon the prejudgment death of a party to a nonsurviving action if the litigation is ripe for judgment. (Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, cert. denied (1970), 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1259.) Although the party’s death in Tunnell occurred after the entry of final judgment and while an appeal was pending, the court expressly denied that the entry of final judgment was the key factor in determining that the nonsurviving action had not abated. Instead, the opinion states that “[wjhat is significant in such cases, in our opinion, is not any metaphysical notion of merger of the cause of action into the verdict, but rather the circumstance that all factual questions had been resolved before [the party] died.” (43 Ill. 2d 239, 243.) In Tunnell, this court noted that a case becomes ripe for judgment following the return of a verdict. (43 Ill. 2d 239, 242.) Other State courts have also held that proceedings are ripe for judgment and will not abate following a verdict. See, e.g., Moore v. Moore (1972), 229 Ga. 600, 193 S.E.2d 608; Bates v. Burns (1954), 2 Utah 2d 362, 274 P.2d 569; Garrett v. Byerly (1930), 155 Wash. 351, 284 P. 343, overruled on other grounds in Martin v. Hadenfeldt (1930), 157 Wash. 563, 289 P. 533; Variety Children’s Hospital, Inc. v. Perkins (Fla. App. 1980), 382 So. 2d 331; Parker v. Parker (1974), 128 N.J. Super. 230, 319 A.2d 750.

During oral argument, plaintiff’s attorney suggested that the trial court’s opinion letter deserved less respect than a verdict returned by a jury. It seems to us, however, that the. opinion letter, although not amounting to a judgment, is entitled to greater weight than a jury verdict. While a verdict is ordinarily final so far as the jury which rendered it is concerned, it may still be modified by the judge through remittiturs or additurs or even set aside, and a new trial ordered; or it may be rendered completely meaningless by the trial judge who enters judgment non obstante veredicto (Ill. Rev. Stat. 1979, ch. 110, par. 68.1). An opinion letter from the judge to counsel, however, is significantly less vulnerable to change. Although not the equivalent of a judgment, which is the officially recorded and publicly announced expression of a court’s decision (People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131, 134-35; In re Estate of Young (1953), 414 Ill. 525, 533), an opinion letter approaches that status more nearly than does a jury verdict. The opinion letter represents the judge’s considered decision; it is his expression of his judgment as to the manner in which the contested issues should be resolved. The recorded judgment will normally differ only in its more formal appearance and content. It is, of course, conceivable that the judge might reconsider and alter his opinion either before or after his decision as expressed in the opinion letter is formally recorded in final judgment form. But where, as in this case, that opinion is presumably the result of the judge’s thorough consideration of the evidence, the law and the briefs of the parties, the likelihood of prejudgment or post-judgment changes is quite remote — substantially more remote, we believe, than the possibility of a judge’s modification of a jury verdict, the propriety of which the judge has had no opportunity to consider prior to its rendition. Accordingly, if as we indicated in Tunnell, a jury verdict is a sufficiently final resolution of the factual questions to preclude abatement of the action upon the death of a party, a judge’s opinion letter must be given the same effect. Consequently, we consider the litigation in this cause to have been ripe for judgment, and that the appellate court erred when it held that the action had abated.

Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court of Du Page County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

specially concurring:

While I have no quarrel with the colorful proposition that parties “ ‘cannot blow hot and cold in a lawsuit’ ” (95 Ill. 2d at 478), I find it to be neither here nor there in this lawsuit. I believe that the result reached by the majority is correct, but that there is a less circuitous route to it than that taken by the majority.

The majority (and, unfortunately, Mrs. Davies as well) mistakenly assumes that an action to distribute marital property subsequent to a dissolution of marriage abates when one of the spouses dies. This assumption is drawn from cases which hold that actions for dissolution of marriage abate upon the death of one spouse. Whether phrased in terms of mootness (Tuttle v. Gunderson (1930), 341 Ill. 36) or abatement (Bushnell v. Cooper (1919), 289 Ill. 260; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204; In re Estate of Chandler (1980), 90 Ill. App. 3d 674), the rationale of these cases is that the death of one of the parties to a marriage extinguishes the subject matter of a dissolution action and removes all cause for complaint: the death of a spouse “settle[s] the question of separation beyond all controversy” (Bushnell v. Cooper (1919), 289 Ill. 260, 264; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 210). This rationale does not apply to property settlements in the case of a bifurcated dissolution such as the one at bar, where a judgment of dissolution is entered by the court before the death occurs and all that remains to be done at the time of the death is to distribute the marital property. The subject matter of the action for distribution of the property is the property, not the parties to the marital relationship, and there remain two adverse claimants to the property, the surviving spouse and the estate of the deceased spouse. The death extinguishes nothing; it merely substitutes one adverse party (the estate) for another (the decedent). The property continues to exist, while the controversy concerning its ownership continues. The controversy concerning the marital property in this case was a live one between two interested parties and should have been ruled on in a formal manner accordingly.

Rather than approaching the case in this way, the majority chooses to treat the trial court’s opinion letter regarding division of the property as a final judgment, thereby accomplishing what it no doubt sees as justice to the parties. This, in my opinion, is needlessly elaborate, and it involves the court in awkward comparisons and in speculation of a kind in which it would not normally engage. The majority asserts that “where, as in this case, [the opinion letter] is presumably the result of the judge’s thorough consideration of the evidence, the law and the briefs of the parties, the likelihood of prejudgment or post-judgment changes is quite remote — substantially more remote, we believe, than the possibility of a judge’s modification of a jury verdict, the propriety of which the judge has had no opportunity to consider prior to its rendition.” (95 Ill. 2d at 480.) This sweeping statement carries conviction only if we believe that juries ordinarily do not give the same thorough consideration to the evidence and the law that judges do, and only if there is evidence in the instant case to indicate that the trial judge either intended his opinion letter to be a final determination of the rights of the parties or was not accustomed to changing his mind, even on the basis of new evidence. Either assumption by this court would be unfounded and unseemly. Juries are the triers of all issues of fact in cases in which they are empaneled, and they act on the basis of detailed instructions by the trial judge as to questions of law. They are expected to consider all of the evidence and all of the legal instructions, and I see no reason to believe that they do not live up to that expectation in the vast majority of cases. Similarly, I believe that it sells the trial judge in this case short to assume that he would not change his mind no matter what happened. I see no evidence to support such speculation, and I believe that, in the absence of evidence which clearly indicates that a judge intends an opinion letter to the parties to reflect his final judgment, justice is best served by presuming such a letter to be intended merely as a temporary resolution subject to modification until it is formally entered and recorded as the court’s decision. People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131; Commonwealth Loan Co. v. Baker (1966), 67 Ill. App. 2d 359; see Berzana v. Mezyk (1980), 86 Ill. App. 3d 824.

While I agree with the result the court reaches in this case, I am disturbed not only by the logic the court has used in reaching that result but also by the emphasis that is placed on the existence of the opinion letter. What if by chance there had been no opinion letter, perhaps because the trial judge had decided to issue a definitive rather than a temporary ruling and to give it the extended consideration he felt such a resolution would require? Would the property-settlement action have abated had Mr. Davies died before the judge issued his final judgment, leaving Mrs. Davies without recourse against either the marital assets or the estate as a result of the trial court’s earlier order declaring her to be no longer the wife of Mr. Davies? The answer that is implied by the majority opinion is “yes.” As I have pointed out, however, there is nothing in the law which commands such an unfair and illogical result, and I can conceive of no reason to assume without some discussion or analysis that the legislature, in enacting section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(3)), intended or even contemplated that such a risk would attend a bifurcated dissolution. I would hold in this case that the property-settlement action did not abate, but would omit all reference to the opinion letter, for I think such reference is both unnecessary and misleading.


author: JUSTICE UNDERWOOD JUSTICE MORAN,

text:
    (No. 57375.

      In re GERALD McNAMARA CHAPMAN, Attorney, Respondent.

      Opinion filed April 13, 1983.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    James J. Reidy, Ltd., of Chicago (James J. Reidy, of counsel), for respondent.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This disciplinary proceeding comes before us on the report and recommendation of the Review Board of the Attorney Registration and Disciplinary Commission (73 Ill. 2d R. 753) affirming the Hearing Board’s conclusion that respondent, Gerald McNamara Chapman, was guilty of misconduct warranting disbarment. Although respondent did not appear in the proceedings before the review or hearing boards, he sought and we granted leave to file a response in this court, treating it as we would exceptions to the Review Board’s report and recommendation.

Respondent was licensed to practice law in Blinois in 1950, and during the period with which we are concerned he maintained an office in Chicago and practiced alone. In October 1979 Manuel Solotke, a fellow attorney who had represented Ben Stelzer in a malpractice lawsuit brought against another attorney, asked respondent to represent Mr. Stelzer in an appeal from the dismissal of the malpractice action. Respondent agreed to undertake the appeal, received a $500 retainer from Mr. Stelzer, and filed a notice of appeal on November 1 and the record on January 3, 1980. Although the original briefing schedule required respondent to submit a brief on February 6, the court extended the filing deadline to April 2. In March, respondent became associated with a small firm which terminated the association on September 1. He asserts in his response and in his brief that a secretary failed to integrate his diary containing the briefing schedule with the firm’s diary. It is also asserted that during 1980 he suffered a “coronary incident” while playing tennis on August 2, was hospitalized until August 8, and did not resume a full work schedule until August 25. Mr. Stelzer telephoned respondent about every three months prior to August 2 to inquire about the status of his appeal, and respondent repeatedly assured him that the matter was proceeding in a normal fashion and that Mr. Stelzer had nothing to worry about. In fact, respondent failed to file a brief by April 2, 1980, and when he had still not done so by September 22, the appellate court, on its own motion, dismissed the appeal for failure to prosecute.

During the proceedings before the Hearing Board, Mr. Solotke testified that, having learned of the dismissal, he visited respondent on September 24 in order to determine why the latter had failed to prosecute the appeal and whether the case could be salvaged. Respondent did not offer any excuse, but explained only that the appeal “had got away” because he was very busy. Attorney Solotke further stated that, during a telephone conversation on September 30, respondent assured him that respondent would soon file a motion with the appellate court to vacate the dismissal and that Mr. Solotke would receive a copy of the motion. When the motion was not filed shortly thereafter, Mr. Solotke made repeated, but fruitless, efforts to contact respondent. His calls were met by a secretary’s response that respondent was “in conference,” and the calls were not returned. Because the time for moving to vacate the dismissal had nearly elapsed, Mr. Solotke prepared and filed the motion on October 20. After that motion was denied, Ben Stelzer directed Mr. Solotke to institute malpractice proceedings against respondent, and a $10,000 default judgment was ultimately entered in favor of Mr. Stelzer. That judgment was not satisfied, and a body attachment was outstanding at the time of the disciplinary hearing. Respondent also failed to return the $500 retainer fee.

On August 18, 1981, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent on the basis of his mishandling of the Stelzer appeal. That complaint alleged that respondent’s conduct constituted the neglect of a legal matter entrusted to him, involved dishonesty, fraud, deceit, and misrepresentation, and tended to defeat the administration of justice and bring the legal profession into disrepute. When respondent failed to file an answer or other pleading after receiving notice, the Administrator, pursuant to Commission Rule 7.1, obtained an order deeming the allegations of the complaint to be admitted. Notice of that order and of the scheduled date of the hearing before the Hearing Board were mailed to respondent, but he failed to appear.

Although the order deeming the allegations admitted provided that no further proof was necessary, the Administrator presented the testimony of Manuel Solotke and Ben Stelzer at the hearing as further corroboration of the allegations. In addition, exhibits were introduced which indicated that this court had suspended respondent for three months in 1978 (In re Chapman (1978), 69 Ill. 2d 494) for neglecting legal matters entrusted to him and that respondent had been reprimanded in 1979 for an act of neglect which occurred contemporaneously with the misconduct for which he was previously suspended. The Hearing Board found that respondent had intentionally neglected the legal matter entrusted to him by Mr. Stelzer and had wilfully deceived his client regarding the status of his appeal. In light of respondent’s previous misconduct of a similar nature, the Hearing Board concluded, as we earlier indicated, that disbarment was warranted and, after respondent failed to file exceptions, the Review Board adopted the recommendation.

Respondent initially argues that his conduct did not amount to a level of neglect sufficient to warrant discipline and that the Administrator failed to present any clear and convincing evidence of fraud, dishonesty, deceit or misrepresentation. We find both of these contentions to be completely without merit. In support of his argument that his conduct did not constitute neglect, respondent sought to establish that our decisions have held that an attorney must totally abandon a legal matter entrusted to him in order to be guilty of neglect and that his failure to meet the briefing deadline was not an abandonment. While some of the cases in which we have found neglect on the part of attorneys have involved an abandonment of matters entrusted to them (see, e.g., In re Taylor (1977), 66 Ill. 2d 567; In re Simpson (1971), 47 Ill. 2d 562), abandonment is not a condition precedent to discipline, and we have frequently imposed sanctions for neglect upon attorneys who failed to pursue those matters with reasonable diligence. See, e.g., In re Kink (1982), 92 Ill. 2d 293; In re Levin (1979), 77 Ill. 2d 205; In re March (1978), 71 Ill. 2d 382; In re Chapman (1978), 69 Ill. 2d 494.

Furthermore, the only indication that respondent performed any work on the Stelzer appeal following the filing of the record is respondent’s assertion that he had begun to prepare a brief to file in conjunction with a motion to vacate the order of dismissal. In view of his failure to file that brief and motion, and his refusal to return calls or otherwise communicate with Mr. Solotke regarding the matter, that assertion does little to mitigate respondent’s misconduct in neglecting a legal matter entrusted to him.

We also reject respondent’s contention that the Administrator failed to prove by clear and convincing evidence that respondent was guilty of fraudulent conduct. When reassuring Mr. Stelzer that all was well in response to inquiries regarding the status of his appeal, respondent must have been aware that his assurances were untrue in at least one of two respects. Either respondent knew that no further work had been done or was in progress after the filing of the record, or he was aware that he simply did not know the status of the case. In either event, respondent knew that the assurances he was giving Mr. Stelzer were not based upon fact. In these circumstances those assurances constituted a calculated misrepresentation of the truth and were fraudulent. (See In re Alschuler (1944), 388 Ill. 492, 504.) Neither the Hearing Board nor the Review Board regarded Mr. Stelzer’s inability to remember respondent’s telephone number or the precise dates on which he placed his calls as detracting from the clear and convincing nature of the evidence and neither do we. See Galapeaux v. Orviller (1954), 4 Ill. 2d 442, 446; In re Drescher (1980), 91 Ill. App. 3d 658, 663; In re Jones (1975), 34 Ill. App. 3d 603, 607.

We agree with respondent that the Hearing Board was mistaken when it included in its report a factual finding that respondent had failed to file a record of the trial proceedings in the appellate court. That mistake, however, does not vitiate the report, as the Board’s other factual findings were well supported by clear and convincing evidence. Respondent also contends that remarks by the Administrator’s counsel in opening and closing statements referring to the disciplinary sanctions previously imposed upon him were prejudicial to him and invalidated the Hearing Board’s report and recommendation because the remarks demonstrated that the Administrator was relying upon an uncharged theory of continuing neglect. Examination of the record, however, reveals that the evidence concerning respondent’s previous transgressions was considered by the Hearing Board only for the purpose of arriving at their recommendation of an appropriate sanction, a process which this court has approved. See In re Broverman (1968), 40 Ill. 2d 302; see also In re McCallum (1945), 391 Ill. 400.

Respondent, stating that he did not attend the hearing because he believed that the matter would be determined only on the basis of the allegations of the complaint which he knew were deemed admitted, characterizes as prejudicial error the Board’s action in permitting evidence to be introduced. It is unnecessary to decide whether respondent’s violation of the duty to attend disciplinary hearings constituted a waiver of any errors (see In re Simpson (1971), 47 Ill. 2d 562, 566; In re Krasner (1965), 32 Ill. 2d 121, 126), because we think it clear that admitting additional evidence solely to corroborate allegations deemed admitted cannot be considered erroneous. Moreover, nothing in the Board’s order indicated that evidence relevant to the allegations in the complaint was precluded. It indicated only that additional evidence would not be required. Too, if respondent’s absence from the hearing was for the reason he states, it would seem he would have appeared before the Review Board to argue as he does here.

The Hearing Board, joined by the Review Board, are of the opinion that respondent’s misconduct warrants disbarment. Their conclusions, of course, serve only as recommendations, as the final responsibility for selecting an appropriate sanction rests with this court. (In re Hopper (1981), 85 Ill. 2d 318; In re Neff (1980), 83 Ill. 2d 20; see also In re Royal (1963), 29 Ill. 2d 458.) In cases in which attorneys were disciplined for neglect, sanctions imposed by this court have included censure (In re Kink (1982), 92 Ill. 2d 293), suspension (In re Taylor (1977), 66 Ill. 2d 567), and disbarment (In re Clark (1956), 8 Ill. 2d 314). Although it is desirable to impose similar sanctions for similar transgressions (see In re Clayter (1980), 78 Ill. 2d 276; In re Saladino (1978), 71 Ill. 2d 263), determining the appropriate discipline must also involve, and often turns upon, the unique factors of aggravation and mitigation present in each case (In re McClennon (1982), 93 Ill. 2d 215; In re Hopper (1981), 85 Ill. 2d 318).

Certainly the hearing and review boards cannot be faulted for recommending disbarment since the misconduct in this case commenced less than a year from the conclusion of the earlier disciplinary proceedings. As this court has frequently stated, however, the dual purpose of our disciplinary system is to safeguard the public and maintain the integrity of the legal profession. (In re Levin (1979), 77 Ill. 2d 205; see also In re Neff (1980), 83 Ill. 2d 20; In re Spencer (1977), 68 Ill. 2d 496.) Respondent’s pleading in this court refers to a period of illness, stress and depression, and suggests that he will not in the future handle litigated matters alone if permitted to continue in practice. Our appraisal of all of these factors here is to some extent handicapped by respondent’s failure to appear and testify before the disciplinary bodies. He now proposes that we might remand the matter to the Hearing Board to permit the filing of an answer and taking of additional evidence. Answering the complaint and presenting testimony is, of course, the action which respondent should have taken originally. We see no reason, at this late date, to impose upon the dedicated volunteers who serve on our disciplinary boards the burden of scheduling and holding new hearings to permit respondent to do that which he should have done initially.

There are attached to respondent’s pleading in this court a number of letters from judges of both State and Federal courts before whom respondent has recently practiced as well as letters from lawyers with whom or against whom respondent has appeared. They indicate respondent enjoys a reputation as a competent attorney possessing considerable ability, has done a significant amount of pro bono work, and will, in the opinion of the writers, be able to continue in the practice without further difficulty if permitted to do so.

We would be more comfortable with our decision to permit respondent to continue practicing had he appeared and cooperated in the proceedings at the hearing and review levels for, presumably, we would then have the benefit of respondent’s testimony explaining in greater detail the problems which he now asserts he was experiencing. Too, such testimony, accompanied by cross-examination and questioning by panel members, would undoubtedly have clarified factual questions as to which some disagreement exists.

Despite some uneasiness, we have concluded that disbarment is not necessary, at least at this point. The drinking problem which formerly existed is asserted to be under control, and respondent has apparently been making payments upon the malpractice judgment. Their continuation, we suppose, is to some extent contingent upon respondent’s continued ability to practice.

Considering all of the circumstances before us we are persuaded, as we were in In re Driscoll (1981), 85 Ill. 2d 312, that a substantial period of suspension accompanied by probation will adequately protect the interests of society and the integrity of the legal profession. Driscoll, as is apparent from our opinion in that case, involved facts considerably more egregious than those now before us. We there suspended respondent for six months and required that he thereafter continue his personal program of rehabilitation under the supervision of the Attorney Registration and Disciplinary Commission, reporting to that body as often as required by it. We also invited the Commission to recommend to us the imposition of such additional conditions as it deemed desirable, and noted that the Commission was free under our Rule 755 (73 Ill. 2d R. 755) to call upon other attorneys for assistance. In this connection we observe that the authors of some of the character letters included in respondent’s brief indicated a willingness to assist respondent. We noted, too, in Driscoll, that experience might result, as it has in other jurisdictions, in revision of our rules to include provisions for supervision or probation in appropriate cases. The supervisory period in Driscoll was successfully completed and supervision terminated by us on October 4, 1982. Proposed rules establishing a system of probation have now been referred to our rules committee and will be further considered by us in the near future.

Respondent is accordingly suspended from the practice of law for a period of two years and until the further order of this court. That suspension is stayed, however, on condition that respondent report to the Attorney Registration and Disciplinary Commission at such intervals and furnish such information as may be required by it, and satisfactorily complete the two-year probationary period. Both the Administrator and respondent may recommend such additional conditions or modifications as may be thought appropriate. Semi-annual reports on respondent’s status shall be filed with the clerk of this court by the Administrator, and jurisdiction of this cause is retained pending our further order.

Probationary suspension ordered.

JUSTICE MORAN,

dissenting:

The majority states that “[cjertainly the hearing and review boards cannot be faulted for recommending disbarment since the misconduct in this case commenced less than a year from the conclusion of the earlier disciplinary proceedings.” (95 Ill. 2d at 492.) I agree, and would therefore adopt the boards’ recommendation.

Respondent neglected a legal matter entrusted to him and failed to return the $500 retainer fee. If this were the extent of respondent’s misconduct, I would agree that case law supports the sanction herein imposed. However, additional circumstances require harsher discipline than that which is meted out in a typical neglect case.

As noted in the majority opinion, respondent gave assurances to his client which “constituted a calculated misrepresentation of the truth and were fraudulent.” (95 Ill. 2d at 490.) A default judgment entered against him in a malpractice suit has not been satisfied. Especially significant is that respondent violated his duty to attend the disciplinary proceeding before the Hearing Board. Although disbarment was recommended, he failed to file exceptions with the Review Board. This behavior manifests the same nonchalant attitude with which respondent has treated his clients’ affairs. Further, because of his failure to cooperate with the disciplinary commission, the mitigating circumstances which he urges, and upon which the majority partially relies, cannot be adequately appraised.

Today’s opinion nevertheless concludes that the sanction of probationary suspension is sufficient to safeguard the public and maintain the integrity of the legal profession. This conclusion is belied by the fact that respondent has already been disciplined for professional misconduct on two prior occasions. In one instance, he was reprimanded. In 1978, he was suspended for three months for neglecting clients’ affairs, the same misconduct with which he is currently charged. (See In re Chapman (1978), 69 Ill. 2d 494.) Despite these sanctions, he has persisted in engaging in conduct unbecoming to a member of the legal profession. I am not persuaded that he will conform to professional standards in the future.

Finally, the majority’s reliance on In re Driscoll (1981), 85 Ill. 2d 312, is misplaced. In that case, respondent was suspended for converting clients’ funds during a period of alcoholism, from which he recovered. However, in imposing the sanction of suspension, the court noted that where there is “no detailed evidence to show the attorney’s drinking was crucial to his misconduct,” disbarment is appropriate. (85 Ill. 2d 312, 315, citing In re Smith (1976), 63 Ill. 2d 250.) I fail to see upon what evidence the majority relied in concluding that respondent has controlled his alleged drinking problem, since he failed to appear or introduce any evidence before the disciplinary commission.

Further, the respondent in In re Driscoll led an “exemplary life” prior to the misconduct charged in that case. .The court considered this factor as a mitigating circumstance. (85 Ill. 2d 312, 317.) That respondent in the instant case lacks a prior unblemished record is obvious. His inability to accord proper attention to his clients’ affairs is equally clear. We should not “permit this respondent to continue the practice of law and thus invite the public to retain the purported services of one to whom the common obligations of his profession mean so little.” In re Feldman (1982), 89 Ill. 2d 7, 13, quoting In re Clark (1956), 8 Ill. 2d 314, 321.

For these reasons, I believe that disbarment, rather than probationary suspension, is the appropriate sanction.

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