would i would note that you will see the two of our members are not here this morning i assure you that they will review the video and audiotapes of this hearing this morning and will participate fully in the part in the decision in this case with that then we begin with agenda number six in re john o'connor cut right disciplinary commission counsel may proceed when they're rea good morning may it please the court my name is stephen split and i represent the administrator of the attorney registration and disciplinary commission in this proceeding we ask this court today to reverse the finding of no dishonesty by the hearing and review boards below in connection with respondent john cut rights improper gifts to then sitting judge robert koch and more and also to reject the review boards recommendation of a sanction of a six month suspension in this case and instead suspend the respondent from the practice of law for two years this complaint rose to say actually rose out of a three count complaint the first count concerned respondents conflict of interest as to a client of his an elderly woman named martha hayden he had created a document by which she forgave a three hundred twelve thousand dollars loan when the forgiveness benefitted another client of respondents and he was found to have engaged in a conflict of interest in a breach of do sherry duty in the act count the second count concerned respondents gifts to then judge robert koch and or he had reviewed the judge's tax returns and tax returns for affiliated businesses without charge to the judge for five years and he was found to have given improper gifts to judge coca nor in violation of rule of professional conduct three point five age in the administrator alleged that he also engaged in dishonesty in connection with his failure to tell  posing counsel about his relationship with the judge the third count of the complaint concerned respondents neglect of bessie carpenter's a state it was a probate estate respond and opened the estate in one thousand nine hundred eighty six and didn't close it until night until two thousand and six there was a time of about sixteen years at one point where the respondent did nothing he was found to have neglected that estate and failed to keep the errors reasonably informed about the matter and failed to explain things about the case to the extent to that would allow them to make informed decisions about the representation another hearing board found that misconduct and it recommended that respondent be suspended from the practice of law for one hundred twenty days and that he also complete the program offered by the only professional responsibility institute the administrator took exceptions to the review board in that case on the no dishonesty finding and also on the sanction the review board found a breach of duty in connection with count one and up to the recommended sanction to six months at that point at the point of the oral argument and before the review board the respondent had already completed the eleanor professional responsibility institute's program so there was no recommendation about that now with regard to the no dishonesty finding the pertinent facts about that count are this judge culkin or was on the bench a circuit court in c hundred ninety to about two thousand and two after that point he was convicted and imprisoned for stealing two point two million dollars from the estate of a local man named jay hayden who was the son of martha hayden who was the woman in personal income tax returns for judge coke and or and his wife for work for the estate of j hayden because judge cokin or was acting as the executor of the estate at that time and eleven returns were business returns for  or affiliated businesses like triple c thoroughbred and triples the there are a stock in businesses like that during this time respondent was regularly appearing before judge coke and or he had a practice in green up in illinois that was at least in part litigation based and he was also the public defender in the town in respondents answer to the administrators complaint he had made at between one nine hundred ninety and two thousand and one he had appeared before judge koch in our hundreds of times  he was never paid for his work on the tax returns and he never in any case told opposing counsel that he had just written ongoing tax review relationship with the judge as i said the hearing board found in the review board agreed that respondent had given him proper gifts to judge coke an hour the administrator had also charged respondent with dishonesty for his failure to tell any opposing counsel in any case that he had this relationship with the judge now the hearing board found that while respondent should i disclosed that he was reviewing the returns and in the hearing board's words the appearance of impropriety was late and the hearing board said that he didn't believe that respondent acted with any intent to deceive and what the hearing board said was that it was quote likely that the respondent was simply a bolivia's about his ethical obligations and the existence or appearance of any impropriety this is where the administrator takes issue with the hearing board's finding in the administrators you it's against the manifest weight of the advocates for the hearing board to have made that decision in the administrators for you since rule eight point four a for which prohibits conduct  involving dishonesty fraud deceit or misrepresentation some standard rule can be violated based on of based on recklessness by the attorney the administrator submits that the evidence clearly showed that respondent was at least reckless as to his actions before the judge responded admitted that he knew that the attorneys were dead returns were coming through his office and that he was acting as though he was reviewing them he admitted that he knew that he wasn't being paid and he actually stated at one point during the hearing that an attorney appearing before a judge should not be doing that judge's income tax returns so respondent by his own admission knew what he was doing and knew what he was doing was wrong and of fraud causes of action and the whip case does say that then and then an intent to deceive is is required but we believe that cases since that time have have kind of stepped away from that very specific common law linking cases lie yamaguchi l schuler have you have described fraud much more broadly than fraud was described in which and also this this court has approved and confirmed nothing there's no proof that that would be a concern but if you if you look at negligence for example or neglect certainly there's a spectrum of neglect as there's as there's a spectrum you know most any kind of misconduct an attorney can the collect a case by simply losing track of it and yet he will have been found to have neglected the case and it will be on the scale of how bad the collect can be it will be more on the benign side or an attorney can pick up a case and purposely make a decision or intend to neglect that case in order to damage that client and that is a much more egregious type of in the collect then is the former example and yet they're both neglect and the administrator the hearing boards the review boards have no problem with differentiating between finding the misconduct and then waiving the egregious or benign nature of that misconduct for sanction purposes and we believe the same kind of thing would be done even with regard to a point know one can one can be dishonest we believe in or be reckless with regard to for example writing checks on your trust account without really ever opening your your your bank statements so that you don't know whether when you're paying one client paying that client with another client's funds and that in our view is dishonest based on a recklessness standard but it's certainly not as bad as an attorney who who takes funds purposely with an intent to cheat a client and run off the police or something so we believe that the administrator and the hearing and review boards regularly deal with kind of a scale of agree just in us with regard to misconduct and that what we're advocating here with a recklessness standard is really nothing different than happens with with regard to a lot of disciplinary violations in the administrators knew there was a recklessness here with regard to respondants duty to his opposing counsel that as i was as i said he admitted that he knew what he was doing was not proper and in this is not what you know what's important for this court to recognize is that this is not kind of an isolated incident this wasn't one tax return and then four months later you appear before the judge this was twenty returns over a five year period and in a situation where the respondent had agreed to run interference for the  s if that was was going to come up and this was a routine almost constant appearance before this judge at some point it it would dawn on any attorney much more so a litigator and much more so a public defender that respond in silence about his relationship with the judge fostered a deception and that the suction we submit would have been absolutely appreciable by any attorney so we believe that there was really no evidence upon which the hearing board should have made a decision that it likely didn't dawn on respondent that he would have to speak up to opposing counsel in order to not cause a deception to occur and under this recklessness standard we believe th hearing board's finding that there was no point for a four violation is against the manifest weight of the evidence but even if this court rejects that that argument the administrator submits that there should be no requirement fraud to see or misrepresentation under precedent from this court and the and the yelling only appellate court when words in a statute or rule are stated disjunctive they're supposed to have different meanings the a b a in its in its model it has never spoken to two things it has never spoken to the fact that these words are in our stated in the disjunctive and it has never defined any of the other three terms in rule eight point four e four and we submit that those terms should be defined differently so that they don't all just encompass the same type of of misconduct in a case that was that was approved and confirmed by this court the wheaton case the review board found dishonesty in connection with an attorney's statements even though that attorney did not intend to deceive and review board member thomas zimmerman in that case wrote especially concurring opinion that advocated that these terms specifically recognized as in compassing related but different misconduct and we would ask this court to to this opinion to define the parameters of rule eight point four a fo r thomas imerman relied in large part on a case out of the district of columbia an attorney disciplinary case called in or a shorter and shorter case was one in which the just district court there or the d c court was construing its own rule which like eight point four four described or prohibited conduct involving dishonesty fraud to seat or misrepresentation and what the court said was that dishonesty was the most general term out of the four it encompass fraud but it also in compassed conduct that just evinced a lack of honesty or was events the lack of straightforwardness for fairness fraud according to the shorter court was all means by which one gains an advantage over another by by virtue of dishonesty deceit was the suppression of facts or misleading another with prospects and misrepresentation was the young true representation of facts the administrator believes that th these definitions are workable and logical for rule eight point four eight four and if this court would would subscribe to them and then respondents conduct here would be dishonest respondents failure to say anything at any time to any of the given the interpretation that it would seem to to deserve that respond its conduct should be found to be dishonest without any intent to deceive with regard to the sanction in this case the review board recommended a suspension of six months did ministre her before the hearing board record or advocated for a two year suspension before the review board advocated for a two year suspension and we continue to advocate for that before this court if you look at the family and she came to respondent to have that debt forgiven and respondent simply said ok i'll drop the documents and he did that and he did not at all make any inquiries as to ms hayden as to whether this would be financially disastrous for her as to who he didn't discuss with her any of the ramifications of her decision to do this and i think everyone can recognize that this was a substantial amount of money so you have a conflict of interest there that really deprived or had the potential to deprive martha haydon of this money you have the improper gifts to the judge over the course of five years you have his dishonesty in connection with his failure apprise opposing counsel about those gifts and then you have this neglect of the estate and usually neglect is something that's not necessarily met with a suspension especially an isolated neglect but this was a that as i stated was in excess of sixteen years in length and it had the hearing board found the the consequences of prejudicing some of the heirs to the estate a couple of years died during that sixteen year period and then when they finally got their money they got essentially no interest on that money over the time period so it ministre to believe that if you look at the conflict you look at the gifts to the judge and the dishonesty and you look at the neglect a two year that is is about where the precedent would would determine that you should land conflicts cases like held rich and lipinski autos were nine month one year cases first single conflicts gifts to judges cases one year generally for mr lane was suspended for one year for twenty five hundred dollars loan to a judge and then compounded by the fact that he appeared once before they had judge during the time that loan was record for the tax for the estate returns i don't believe i don't well know he made thirty made three thousand dollars i think over the yeah i believe that's what it was where the returns and he did the judge did pay for it on all those returns caution the testimony was that he would have charged between fifty and one hundred dollars for reviewing a tax return so twenty returns at one hundred dollars would have been two thousand dollars twenty returns at fifty dollars would have been a thousand dollars and early mention running interference with us the legal work there was there was no evidence that there was any sort of audit or anything like that during the five year period thank you thank you thank you mr chief justice may it please the court counsel my name is bill nor am i represent the respondent in this cause mr john cut right whose office is in toledo illinois which is in cumberland county a mainly ru county mr copyright was licensed to practice in one thousand nine hundred sixty seven and therefore has practiced for forty two years without a previous formal disciplinary complaint being filed against him respondent would agree that there are some fascinating legal issues that have been raised in this case especially concerning that a quick ability of rule eight point four a for this proceeding but as the respondent from practical purpose obviously the issue that he is most interested in is the disciplinary sanction that is going to be entered against him in this case in this instance the administrator is requesting a sanction four times as large as what the review board recommended in this case and therefore it is a very important issue to mr cartwright because he is sixty seven or sixty eight years old now it may be a two year suspension would be the end of his career therefore i'm going to start out in instance with talking about the discipline that we believe should be imposed in this circumstance as the court has said numerous times over the years the purpose of a disciplinary proceeding is not to punish the attorney but rather to protect the public to maintain the integrity of the profession and to safeguard the administration of justice from the approach in this case we believe that a two year sanction would be punitive in nature and would not address the purposes of a disciplinary proceeding in this case the review board and respond it in his brief the administrator in his initial motion to approve and confirm relied upon the week case the chewy case involved an aggravated conflict of interest where an attorney who represented a company that was involved with a sand pit had a woman who was his client she was a widow she had inherited some money and he caused her four kind of ushered her to the door of the same company and she loaned significant amounts of funds to that company without any disclosures by mr t about the risks risks that he knew because he was the attorney for the company and he knew the company was in bad shape while the facts in this case are not exactly what we have here what the court in the to each case looked at was the attorney's intent in found that there were no deliberate misrepresentations made by the attorney nothing of an affirmative matter that he didn't have his own self interest or a profit interest in mind when he invited this client to make these investments the attorney had been admitted to practice of so the practice of law for thirty years had good character evidence and the court said in that case that the purposes of a disciplinary pursuing would be served by a six month suspension we believe that the circumstances are very much the same here in mitigation as i've said mr wright is practiced for forty two years without a previous complain he had good character he had judges testify on his behalf that they've known him for many years and he's always enjoyed a good reputation in the community he served a rule area which has never been seen as specifically a mitigating factor but there's testimony in the record that at some times during his career mr cartwright was the only attorney who was involved in private practice in cumberland county on a full time basis there were obviously judges who were obviously the state's attorney but there were times when he was the only person that had a shingle out in the whole county as found by the hearing board and review board there was no personal profit motive in anything that he did in this instance there was no dishonest motive in this case he cooperated fully with the disciplinary already therefore in this case we believe that a six month suspension would serve the purposes of a disciplinary or seen if you look at the three different counts there is misconduct there respond it has admitted they you engaged in misconduct in all three instances but there are no real eber of dating circumstances related to any of these situations in relation to the count one conflict of interest the misconduct in that instance took place in february of one thousand nine hundred three while there is no statute of limitations in disciplinary proceedings i think the court has to take into consideration that this happened sixteen years ago and that we haven't seen a flood of similar conduct from mr cut right in the intervening period of time a client martha hating mr cartwright testified was somebody that he knew his entire life in fact the testimony shows that he sat in with his father and the hayden's while he was a law student when he interviewed them about their estate and about their initial wills that he prepared for them his testimony was that when martha came and asked that this gift be forgiven that he thought that was reasonable that it was her clear direction and he thought what he was doing was appropriate obviously in this case there was a conflict of interest he did represent the coke in our family through the car coke in our estate and that should have been disclosed to martha in this instance the acts where mr cut right made his mistake in this instance and he will own up so that no testimony or advents at all in the record that shows that mr cut right participated in that received any benefit from that there is a suggestion that he failed to advise her to the consequence that's correct though is testimony was said hearing that he had known martha her whole life that she was a business person involved in the local community and that her direction was clear he said so clear everybody that she had a debt of gratitude to the koch in our family for everything that they had done on robert koch in our took care of mrs haydon as we later found out took care of her not in a bad way but because he was stealing from her directly but he drove her to meeting c he took her places he looked after her finances everybody knew that and so bad and mr cut right it's mind link the two together and it wasn't just on that one day that she came in and said she wanted to do something for these people but had earlier at they're there's are indications in the rocker that judge koch in our in addition to paying himself twenty four thousand dollars a year for executors fees aso depleted martha's personal checking account that started out with something like seventy thousand and it up at thirty three thousand there was also indications in the racket that judge koch an hour devoted to himself one hundred eighty eight thousand dollar  inheritance that they have martha was entitled to so her state after all of those or before all of those things was at least a half a million dollars so this is more back to as i said nine hundred sixty six before he was admitted when he sat in with mr and mrs haydon and knew their assets than he had handled i believe the estate of mr hayden when he passed away hayden was one of mr cutts writes best friends so he belief that he accurately knew what her and state entailed had a rough idea though he did not sit down and look at all the proof but because of his not direct descendants not children that were out there that did testify in this proceeding but no none of these things came to life until after after martha passed away he goes  the time he prepared this will for giving this long to the judge there right and his family and his family he was appearing before the judge regularly that's correct in this case though as far as the appearances before judge coke an hour of the hearing board found that mr cut right in this isn't very complimentary to my client but they used the term simply oblivious that he didn't think about the tax returns he did not think about the work betty did while he was appearing in front of the judge the record doesn't show that any special favors were ever given it's mr cartwright in fact mr cut right said he had lost some very hard decisions he thought before judge coke an hour over the years in this case the testimony shows that the way this developed as fire as preparing the tax returns was that mr cut right represented koeppen hours the state analysis and were involved in several business enterprises bob door the accounting for the family who was wholly independent of mr cut right had always prepared the taps at turns and continued to prepare those tax returns but ball about signing down because he didn't believe that he could represent the coke in our family before the i r s where mr cut right had been very successful in representing people before the i mr cut right stated that he agreed initially to just review those business tax returns because he believed his client the estate of claire koch in our had an interest in dolls and he thought it was appropriate the testimony was that judge koeppen our would pick up the tax returns that were prepared by the accountant the accountant had all the background information and would then deliver them to mr cut rights office cut right originally denied that he had done the tax returns because he had no recollection of doing judge koch an hour's personal tax returns in fact one of the tax returns has a secretary signature on it and she was authorized he had trained as his his stamp to go over these tax returns to check the figures to make sure everything was in line in the appropriate place but his office didn't have any of the background information so this wasn't a case where the judge came directly to mr cut right said john i want you to do my tax returns and the fact they got slipped in the pile with these business tax returns after this came to light my client does agree that was inappropriate for him to be doing that the hearing board and the review board confirming bat though said in this case based upon those circumstances the evidence doesn't show that there was any intent in this instance to mislead anybody in the circuit court of cumberland county by not disclosing this attorney client relationship because as a matter of fact they said it never came to my client's mind never never came to his attention he wasn't using it as a benefit he wasn't trying to personally profit from it in this case the most interesting issue is obviously this eight point four a four question about whether the court should split fraud dishonesty the sea or misrepresentation into four separate causes of action with different levels of proof better and fall off its respondents position that if you look at the law in the state of illinois that we've always required some element of scien or intentional behavior in order to prove up fraud dishonesty the seizure misrepresentation in fact in the terminology section of the present rules it says  conduct has to involve some type of an attack in this case did ministre has relied on this shorter decision from the d c court if you read that decision i would suggest that it just shows you how complicated the analysis is going to become if we take out scienter from a violation of a point for a for in the nineteen years since that short a decision has been issued by the d c court it has not been picked up by any other jurisdiction in the land the administrator here in effect is saying we need to follow that decision and for many reasons legal i don't think that the court ever intended for its rule not to involve some type of science or practical you would have these charges that would have different standards of proof different defenses different levels of what the administrator would have to prove vs fire has the respondents mental state was concerned therefore we believe it would be a mistake and would make these proceedings much more complicated good examples are the cases in i would i would say that they do go as is the one case cited by the administrator that was the jones decision where the attorney didn't disclose five hundred thousand dollars worth of judgment a judgment th had been entered against her in two loan applications based on what she thought was a good legal argument which turned out not to be true it wasn't a good legal argument and what the court said is and that instance she had to know that that information was relevant to the people that she failed to disclose it to an end she made a conscious choice not to disclose that information therefore i think you could have constructive a violation of the rule if there is some indication that the attorney has made a conscious choice not to do something in a situation where it's obvious that there's a problem and i think it's important that in a case like that that a person like that be subjected to discipline because they it's the kind of person that we want to avoid having in the practice of law someone who makes conscious purposeful decision is obviously somebody that the public needs to be protected from in this case about somebody who's to truth as we look back is with a sense of libya is that person deserve any section again i don't i don't think it's as dangerous a person to the profession as somebody who will intentionally misrepresent difference whether he's oblivious that's probably true though in this case we had a public number that sat on the hearing panel in this case they read the facts in the hearing panel found or not read the the testimony and then in a sense voted for a one hundred twenty day suspension shorter than what the review board said and again i think it makes sense that if we have somebody who converts funds from a client intentionally fraudulent only that's person that needs to be removed from the practice in this case there was a recommendation that mr cartwright attend an ethics class which he did and he has proven not there is no i mean there's three problems here but that over a course of forty two year career in this case i think there are a lot of things that mr cut right in his record has shown have benefited this community and therefore we don't believe  defining fraud again and again in different kinds of ways for example just describing this court specifically recognized the concept of constructive fraud in the in very gerard case but since that time the court has said nothing about  did minister believes that it would be easier and more forthright to look at the terms in rule eight point four eighty four and give them different but connected meaning so that we have done the lumping things under fraud with different kinds of fraud you can say that this type of conduct is dishonest and this type of conduct is a misrepresentation rather than kind of pushing them all into the arena of fraud and fraud does require sea enter but under the shorter opinion these a logical kinds of definitions dishonest conduct would not require an intent to deceive but would just be conduct that an average person would look at and say well that's not honest conduct and then again with regard to sanction an attorney who did something dishonest without an intent to deceive would logically receive a lesser sanction for that dishonesty then would an attorney who who engaged in fraud with an intent to deceive and with an intent to benefit himself with regard to the same fashion in this case the administrator agrees that to you is on point to a point two years ago is a good starting point for the constructive for the conflict of interest in this case but as i believe this court pointed out in some of its questions to mr moran this this was an egregious conflict of interest this was a large part of martha hayden's a state that was owed to her by the culkin or family who  least seemingly had an ability to repay that loan and instead that money was then removed from from her possession without any sort of questioning as to whether she could really afford to do this and the evidence that hearing that if mr cartwright would have done a little bit of digging or questioning her he might have been able to discern that this was happening but our problem with chewy is that it doesn't really cover the conduct in this case beyond the conflict of interest that doesn't touch on the gifts to the judges or to the judge coconut hour or the but dishonesty inherent in his failure to talk about that relationship it doesn't cover the neglect so that the six months that was given to mr to use a starting point for the sanction in this case but we believe given the totality of the misconduct and also the aggravation and the hearing board in this case was was concerned that respondent did not show any remorse for any of his misconduct he thought that he represented martha hayden just fine he kept repeating that he did what she wanted him to do and he didn't see what the problem was he said in connection with his neglect of the  did what the years wanted him to do and he didn't see what the problem was with not closing this estate for sixteen years so that's something that figures into the sanction decision here and we believe that the more appropriate sanction is a two year suspension thank