the morning may please the court my name is susan frederick rhodes i represent the a palindrome larkin who is the administrator of the attorney registration and disciplinary commission before i begin i'd like to correct a citation on page thirty two of our petition page thirty two in the first paragraph there is a reference to the appendix exhibit five with a page number referencing page forty three of that exhibit and it should be corrected and it's page forty seven to page forty eight the administrators argument is threefold in taking exceptions to the review boards report and recommendation that the disciplinary charges against the respondent be dismissed the review board erred in finding that the respondents false statements concerning the manner in which he delivered discovery responses to opposing counsel were not material to the matter that was pending before the bankruptcy court the review board erred in finding that the administrator failed to prove that the respondent in gauging the unauthorized practice of law before the seventh circuit court of appeals because the administrator did not present any evidence regarding the respondents admission status of the review board erred in finding that the administrator had no authority to reopen a closed investigation into the respondents unauthorized practice of law after a second complaint was received that he continued to practice law after his suspension by this court this course probably wondering why the hearing board found that their response kind of demonstrated a blatant disregard for the rule of law and recommended that he should be suspended for two years while the review board recommended that all of the disciplinary charges against him be dismissed is the administrators position that the hearing board who heard the evidence observed the witnesses made a proper determination and under the manifest weight of the evidence standard there was no reason for the review board to reverse those findings i'd like to address the exceptions that the administrator filed in the reverse order starting with the issue of the commission roll fifty four then with the un authorized practice of law on the seventh circuit third the issue of materiality in the response false statement to the bankruptcy court and finally the issue of an appropriate sanction for his misconduct we we we close an investigation for many reasons there could be an unavailable of the of evidence there could be a lack of credibility in the complaining  witness there could be the investigation could be closed and the air on the part of one of the administrator staff the administrative review is over six thousand complaints against illinois attorneys each year and inevitably there may be a mistake in a review of of that the misc the investigation could be closed if it appears that the misconduct was an isolated instance or that the misconduct ceased after the administrator has contacted the respondent and that is what happened in this case the investigation was closed when it appeared that the responded stabbed appearing in the d page county litigation matter and his client's retained counsel now in resuming an investigation again there's many reasons why there could be there could be new information that's received in  same investigation there could be reconsideration of the closure when i complain and points out to the administrator that you made a mistake you didn't look at the information i sent you in the appropriate way there could be it could be resumed after review by the oversight committee which is a committee that's appointed by the commission to review closed investigations that do not go into the inquiry board or as in this case there can be a new complaint of similar misconduct that indicates there is a pattern of misconduct that needs to be further investigated there is precedent for the reopening  close investigation under that circumstance i direct you to the this court's opinion in the rinella case that was a situation where the attorney d c received a complaint of sexual misconduct between an attorney and his client it was a he said she said situation the investigation was closed at that point several months later another complaint was received by a female client of this attorney a third complaint was filed and they have to point we saw a pattern and invest first investigation was reopened and all of those matters went to hearing and eventually before this court issue was raised for the first time during oral argument before the review board the administrator asked for permission to file a supplemental brief to clarify the information we obtained a letter from the clerk of the seventh circuit stating that a review of their records showed that they looked back to all the way to nine hundred seventy and they show their records showed that the respondent has never been admitted to practice before th court now they responded in his response to that document and to the supplemental brief the administrator claim that he had a telephone conversation with the clerk of the seventh circuit who assured him that he is a member in good standing o the bar it's the administrators position that the written letter from the clerk of the court is evidence that he has not been admitted to practice before their court and that is that the review board decision the decision of the bankruptcy court the decision of the seventh circuit an appeal and the circumstances in which the mis representation is were made in the certificate of service i think that's where you need to focus on was it material  not his responses to the disc his discovery responses were late and by making the misrepresentation of the service state he had tempted to avoid a sanction and that's what the seven circuit found the seven circuit found and i quote that the misrepresentations in the search of because service were so obviously related to his failure to comply with the order both of those courts found that it was material was material to them that he lied in the we quoted in our brief the transcript from the bankruptcy court the first question the bankruptcy court asked responded did you comply by the date that i ordered you to comply he said no and the judge said and then you went on to lie about it and he said and i don't use lie you know loosely you lied to this court about what you did the way that this that this all occurred was there was a motion for sanctions filed and the issue of his failure to comply by the due date that was ordered by the court after that hearing and the motion for sanctions opposing counsel informed the court of the misrepresentations in the search if we get a service and the bankruptcy court asked counsel to amend their motion for sanctions to include that information about the misrepresentation ultimately this court has got to make those decisions of materiality right in fact as it is natural right and the hearing board made that finding the hearing voices pacifically found this is part of the evidence that we've received on this they also heard the testimony of respondents opposing counsel they said we are not bound by this but we consider it as part of the evidence that was presented to us but because the misrepresentation was specifically made to those courts they were not just reviewing some other court's decision of the appellate court was but the bankruptcy court itself it's clear from their decision that it was material to  and so we take the position that the review board should not have substituted its own judgment as to what was material when the evidence and the very court to which the misrepresentation was made found it to be material right let me let me swing back to commissioner all fifty four because that is an issue that is most important to the administrators work every day the majority of the review board found that the chairs that responded continued to practice lying to page county after his suspension should never have been brought because the investigation of that kind of had previously been closed by the administrator and the evidence it was reopened after it came to the administrators attention that responded continued to practice law before the seventh circuit now review board member roll away filed a dissenting opinion and he found that the majority construction of rule fifty four was too restrictive and that the administrator should be able to reopen an investigation when as illustrated by the facts of this case a pattern of misconduct becomes evident it's the language of rule fifty four that the administrator can resume an investigation if circumstances warrant is broad language and there's no language in rule fifty four that limits the circumstances that can warrant the resumption of an investigation there was no prejudice here to the respondent in the reopening of that investigation he was notified when the investigation was closed they act pursuant to rule fifty four it could be reopened in the future if circumstances warrant he was notified when it was reopened and he was notified that it was reopened because we had received a second complaint that he was continuing to practice law after this court suspension order should the administrators discretionary decision to resume a close investigation be reviewable yes and it is it's reviewed by the inquiry board and it's reviewed by the commission's oversight committee so before a case reaches the hearing board stage and the filing of a formal complaint the administrators discretion in resuming a close investigation has already been reviewed by one or the other of those b under the construction of rule fifty four by the majority of the review board this court would only know that the responded continued to practice law under his suspension in the seventh circuit and this court would never know it would not be in the that he also practiced law after his suspension in the litigation matter and du page county and they had as a matter resolved that the administrator believes that rule fifty four contemplates the preamble of the commission rules states the purpose of the rules is to handle disciplinary matters expeditiously in the interests of the courts the public the bar and also the attorney who is the subject of the investigation construction of real fifty four under the  the review board would serve only one of those interests and that's the interest of the attorney who is under investigation the administrators goal is always to move investigations as expeditiously as possible but he needs the ability to reopen a closed investigation when circumstances warrant that is the discretion there has been given to him by the commission and especially in a case like this where it is undisputed there's no dispute here that they responded continued to practice law after this court suspended him in the seventh circuit and into page county the hearing board found that he violated rule five point five a and then finding it was not against the manifest w court let me talk briefly about the seven circuit practice the record at the hearing was silent regarding the response admission status in the seventh circuit because it was undisputed by the responded that he had been suspended at the time the seventh circuit issued an order soo is fantasy indicating that it didn't happen only that the response was authorized to practice law before the a court due to this court suspension order and the responded never claimed that he was authorized to practice law before the seventh circuit in his affirmative defense to the disciplinary complaint and then his various pre hearing motions before the hearing board he always took the position that he did not appear in the seventh circuit as an attorney but as the president of his corporation and under a stablished case precedent corporation and that represent itself in litigation could only represent his corporation as an officer even though he's an attorney under well established case law both state law and federal law a corporation and that represents so far as i stated earlier when the issue came up we have tamed information from the seventh circuit the seventh circuit and we also inform the review board of the seventh circuit opinion in the case or in manner of bad deed which held  an attorney who's been removed from the master role of attorneys in the state of illinois engages in the authorized practice of law when they appear in the seventh circuit we ask this court to take judicial notice of the seven circuits admission records and also the seven circuits opinion in the big case we asked the review board to do that and they did not refer to those they had information in their in their findings for three years and until further order of the court the hearing board had recommended that he be suspended for two years the misconduct that occurred in the three counts of this complaint involve serious infractions someone attorney's obligation as an and intentional in each instance evidence was presented at the hearing of the harm that respondents conduct cost to the administration of justice in those various pending court meanders there were additional court proceedings increased attorney fees and a waste of judicial resources and ancillary matters that had nothing to do with the substance of those cases there are numerous factors in aggravation respond it has prior discipline although it's not similar to the discipline that occurred in this in this case it's similar in in the manner that it's all a refusal to submit to regulatory authority in his prior discipline his driver's license was revoked he continued to drive in this case fact he misrepresented to the review board and to this court that he's a member in good standing of the seventh circuit bar when the seven circuits records show that he's never been admitted to practice before their court there was no evidence  mitigation presented of his good character or participation in the eighty's or pro bono work and in the absence of any medication this court's precedents have imposed harsh sanctions sanctions  continue to practice law in violation of the court's disciplinary order and we've provided a short list in our petition of the numerous cases where this court has imposed sanctions from a two year suspension to disbarment for attorneys who do not comply with the court's order when it's when you couple his misconduct in continuing to practice with his misrepresentations in the bankruptcy court the administrator believes that a harsher sanctions than the two years recommended by the hearing board should be imposed may have one minute quick but why until further order of the court as observed by the hearing board respond it appears to be a person who believes that the laws do not apply to him and he should be required to apply to this court and prove that he will comply with this court's orders in the future before he's allowed to practice law again thank you thank you all of my statements most of my testimony was not contradicted in fact almost no questions were asked to the on the issue of supposedly lying to the bankruptcy court and in a certificate of mailing the hearing board specifically found that i did in fact comply with my notice and did in fact the liver the documents for copying and they had lying on may seventh two thousand and four that was the crux of the so and that's the first time we've ever had a hearing in any court on whether or not the certificate of mailing was accurate and it has been found to be found not to be true that even the hearing board found that the that the d c had not sustained its burden on that issue so i think that removes that issue the the air d c has an admitted that it didn't consider materiality it neither played it nor did it offer evidence on whether the issue w material with the review board found that it was not material because the documents had not been delivered by april thirtieth two thousand and four and the bankruptcy court was going to dismiss the case incumbent upon the a r d c to prove by clear and convincing evidence each and every allegation in each and every allegation that is required and they have admitted that they did not and the review board then of course properly dismissed the case on count i'm going to come t called to the attention that there may be a suspension in illinois and gave respondent a period of time in which to respond to that which is it which is in compliance reaffirm but in the complaint there are no allegation that attempted the hearing make clear neither did anyone else involved in the case but no back to i did not know you could not and i thought that you could because i had as rule forty six and ascertained that in fact it is a separate jurisdiction and has its own bar then it was incumbent upon the attorney coming finally to count three and rule of fifty four it is hard to imagine that the attorney registration and disciplinary commission needs greater powers than it exercises it has overwhelming power already we've been in this case almost for a half years and it's they want to be constrained by nothing they want to be able to change their mind for any reason any reason at all they can they can close an you believe the suspension had been stayed on the basis of rule three sixty six three sixty seven filing the notice of appeal the decision for hearing rehearing in this court that was the basis and very similar to the case of in re cats were apparently mr katz advice to the court in four different occasions and the charges against him were dismissed because he did not have any intent to mislead the court order or practice law during his suspension as neither did respond to this case and that's that's not contradicted in the record so it's spite of all of these here if you look through the fluff and you look at these allegations there's really nothing here to be disciplined for and the review board very cogent and incisive analysis and recommended that the entire case be dismissed and i would if there were no further question with with respect to  i mean obviously i don't think any i don't think that they should have been allowed to reopen and therefore the dismissal of proper if you consider as you i think asked me about the dissent and their recommendation i would think a reprimand something there was no intention and to mislead anybody or to practice law during a suspension as i was it was pointed out the brief  merits but i believe that they dissent referred to count two which he also agreed should be dismissed so how it can form the basis for some pattern by the way pattern of another thing that was never  case you know it and you have to plead unproven allegations in a complaint and you have to plead and prove the cause of action and none of these things are  while he did decide i i would i would suggest that he was clearly wrong that the majority was correct and that there has to be this court has to impose some limitations on their power their powers and norms and this court is charged with that in this court they work for this court in a sense and i think it's very reasonable to put some restraints on on their potential to  are no further questions i would ask this court to affirm the ruling of the review board thank you thank you this road talked about this his recommended sanction doesn't really make it clear i mean he says i would affirm the hearing board's factual findings and there count i concur in the balance of the majority's opinion it is my considered opinion that the respondent should be suspended from the practice of law for one year so it's really not clear that his recommended sanction is geared just to count three it's possible that he felt that overall there should be  sanction of one year the allegation that the respondent engaged in the unauthorized practice of law when he appeared in the seventh circuit specifically alleged that he could not appear as an officer of his corporation and in an unusual move the administrators counsel actually cited two case law in the complaint and allege that he could not do so under the case of scandia downs which respondent just mentioned to you so he was aware when the complaint was filed it was that was one of the bases and which the administrator charged him with the an authorized practice of law and the other one was that he was ineligible to appear in the seventh circuit when his illinois license was suspended and his license to practice law in the federal district court was also suspended which made him in the eligible for admission to the seven circuit there was no reference in the seven circuits order to him that he respond to them and let them know the status of his illinois license to rule forty six the purpose of they had order was did  indicate they were giving him an opportunity to respond as a member of the bar of the seventh circuit all it said was it appears to us that you've been suspended in illinois and therefore you cannot appear before us please let us know absolutely that but he avoided the admissions issue with the seventh circuit by retreating at that point he responded argued that the administrator wants the authority to reopen investigations for any reasons not just any reasons the rule says as circumstances warrant such as the receipt of continuing complaints of the same type of misconduct which the first complaint was closed the rule is not only for the protection of attorneys but it's also for other purposes of the disciplinary system to protect the public and that is our main well we try to put all of the complaints together in one preceeding for purposes of due process and and fairness to respond and that we're not going to litigate each individual complaint separately it just is makes for judicial economy to hear them all out all at the same time i you know i think i just want to point out that the respondent always has an explanation for why he did things he continued to practice because he thought wrongly they act because he filed a petition for rehearing that rule three sixty seven apply when in fact it was rule seven seventy one applied to his situation in his prior discipline he tried to stop the disciplinary hearing from going forward because he was being charged with one stayed any disciplinary action against him at the time which was an act of the law he was wrong in his belief that because this court ordered the administrator to respond to his petition for rehearing that somehow this court was considering his case again and that the petition for rehearing was going to be granted he was wrong in his belief that he could represent his corporation in the seventh circuit and as the hearing board observed he always seeks to rationalize his conduct and he continues to deny any wrongdoing and that's a serious detriment for an attorney who has an obligation to the courts has an obligation to his client to be honest and forthright in the practice of law this is an attorney who's kind of shows a complete disregard for the authority of this court he was told that he was suspended continued to practice law for that reason the administrator believes that a suspension of three years until further order of this court is the appropriate sanction in this case thank you thank you based number one one three zero three five in re robert