No. M.R. 16045–Agenda 15–September 2000.

								In re JEROME KRULE, Petitioner.

Opinion filed December 1, 2000.

	CHIEF JUSTICE HARRISON delivered the opinion of the

court:

	Jerome Krule petitioned this court for review of the most

recent recommendation by the Committee on Character and Fitness

(the Committee) that he not be certified for admission to the bar.

166 Ill. 2d R. 708(d). After the Committee filed its response, we

allowed Krule’’s petition and permitted the parties to present oral

argument. For the reasons that follow, Krule’’s application for

admission to the bar is denied.

	 Jerome Krule graduated from the John Marshall Law School

in 1994. In 1995, the Committee on Character and Fitness (the

Committee) voted not to recommend certification of Krule for

admission to the practice of law. In reaching that decision, the

Committee was most concerned with Krule’’s participation in an

insurance fraud scheme which resulted in his conviction of a felony

in 1988. The Committee felt that Krule was less than candid in

describing his role in the scheme and he had not adequately

demonstrated that he was rehabilitated. The Committee also

expressed concern over Krule’’s apparent lack of candor in failing

to apprise his law school of three previous misdemeanor

convictions.

	Krule sought a new hearing in 1996. Because his request was

made prior to expiration of the requisite two-year waiting period

following the Committee’’s 1995 decision, it was denied. Bar

Admission Rule 9.1. Krule then filed another petition for a new

hearing in 1998. This time the Committee granted the petition, and

the hearing panel convened a new hearing in the case in March of

1999.

	After taking evidence, the hearing panel concluded that Krule

had failed to meet his burden of proving by clear and convincing

evidence that he possesses the requisite moral character and

general fitness to practice law. The hearing panel further concluded

that Krule had once again failed to show that he had been sufficiently rehabilitated. Based on these conclusions, the

Committee adhered to its original decision and voted not to

recommend certification of Krule.

	In undertaking our review of the Committee’’s decision, we

begin by noting that the final judgment regarding admission of an

applicant to the practice of law rests with this court. As a general

rule, a determination by the Committee on Character and Fitness

concerning the character and fitness of an applicant neither binds

this court nor limits our authority to take action. In re Loss, 119 Ill. 2d 186, 192 (1987). We have also held, however, that where a

hearing panel concludes that a petitioner does not possess the good

moral character and general fitness necessary for the practice of

law and recommends that certification be denied, as was the case

here, this court will not reverse unless that recommendation was

arbitrary. In re Glenville, 139 Ill. 2d 242, 252 (1990).

	The criminal conviction which led to the original denial of

Krule’’s certification arose from a scheme he facilitated to

systematically defraud insurance companies. At the time, Krule was

a licensed insurance professional. He testified that he contacted an

attorney named George Anderson to ““go into business with him in

personal injury.”” The business worked this way.

	Anderson owned some taxi cabs, and Krule took a job in his

office. When one of the taxi drivers was involved in an accident,

Krule would arrange for him to see a Dr. Starkman. With Krule’’s

knowledge and complicity, Starkman would deliberately generate

inflated bills containing charges for services that were not

necessary or were not performed. Krule, in turn, would submit the

fraudulent bills to insurance companies for reimbursement. Krule

engaged in this activity from August of 1986 through February of

1987. During this period he submitted scores of false claims to

eight different insurance companies.

	Krule’’s insurance fraud scheme ended with an 82-count

indictment issued by a Du Page County grand jury. Named as

defendants were Krule, attorney Anderson, Dr. Starkman, and six

other individuals. Krule pled guilty to one count of theft, a felony,

in exchange for his testifying as a government witness. He was

sentenced to 30 month’’s probation. As a condition of probation he

was required to complete 950 hours of community service and pay $5,000 in restitution. Krule’’s probation was terminated

satisfactorily on October 1, 1990.

	Attorney Anderson also pled guilty to theft. He was ordered

to pay a fine of $100 and $77 in court costs and was placed on

conditional discharge. The condition imposed by the sentencing

judge was that Anderson was required to file a motion with our

court for disbarment on consent. Anderson filed such a motion on

February 16, 1990, and it was allowed by this court on March 27,

1990.

	Following these developments, Krule applied to and was

accepted for admission by the John Marshall Law School. As

previously indicated, Krule graduated from there in 1994. The

Committee on Character and Fitness subsequently refused to

certify him for admission to the bar, primarily because of his felony

conviction and the nature of his involvement in the insurance fraud

scheme.

	In ruling as it did, the Committee noted Krule’’s lack of candor

about these events when he applied for law school. Krule

characterized his role as that of a ““clerk,”” even though his

testimony at trial indicated that he played a far more substantial

role and helped devise the scheme. A letter written by Krule to the

law school’’s dean contained falsehoods, and the Committee found

that Krule had refused to accept responsibility for his illegal and

unethical conduct. Finally, the Committee expressed concern that

Krule had failed to disclose three misdemeanor charges, two of

which involved pleas of guilty, on his law school application. Krule

admitted that the reason he was not truthful about those charges is

that he feared they would jeopardize his chances for admission into

law school.

	Following his felony conviction, Krule obtained employment

and engaged in volunteer and charitable activities beyond those

necessary to comply with the terms of his probation. The

Committee acknowledged these factors and took note of positive

testimony from character witnesses. The Committee nevertheless

concluded that ““specific evidence”” of rehabilitation was lacking.

The Committee also cautioned Krule that

		““an applicant for admission does not become entitled to

certification of his character and fitness simply by fulfilling

the educational requirements and by participating in civic

and charitable activities.””

	When Krule obtained a new hearing in 1999, he testified on his

own behalf. He told the Committee that he would consider his law

license his most valuable possession. He has worked in the

Evanston community defender office and served as a teacher of

English as a second language in the Oakton Community College

adult education program. He stated that he would like to practice

law in the public sector and intended to continue his volunteer

work regardless of the Committee’’s decision.

	Krule admitted that because he was an insurance professional

at the time, ““maybe he had more of a major role”” than the other

participants in the insurance fraud scheme that resulted in his felony

conviction. He expressed remorse for his illegal conduct and said

he regretted his failure to report the misdemeanor convictions

when he submitted his law school application.

	In addition to testifying himself, Krule presented the testimony

of seven character witnesses. One of these was Associate Circuit

Judge Fe Fernandez of the circuit court of Cook County, who

appeared on Krule’’s behalf.1 Prior to taking the bench, Judge Fernandez had worked with Krule at the Evanston community

defender office. According to Judge Fernandez, Krule had done

volunteer work at the community defender office on an ““as

needed”” basis since he was denied certification in 1995. Robert

Roy, director of the community defender office, also testified. Roy

and Judge Fernandez opined that Krule is honest, trustworthy and

dedicated to his goal of becoming a lawyer.

	Additional testimony was provided by Patricia McCarthy, a

reading specialist at East Prairie school district in Skokie, and

Marilyn Antonik, program manager for volunteer teaching in the

adult education division and coordinator of the adult literacy

program at Oakton Community College. McCarthy and Antonik

described Krule’’s work with Oakton Community College and

reported that he was generous in donating his time and dedicated

to his students. They also attested to his trustworthiness.

	Edward Michael Reilly, a Chicago police officer and lawyer

who had attended law school with Krule, said that Krule would be

an ethical lawyer. Ralph Ruebner, a professor at John Marshall

Law School, and Elmer Gertz, a former professor at John Marshall

Law School, testified that they had known Krule since he was a

law student. Gertz is also a friend of Krule’’s family. Ruebner

believed that Krule had matured, and both professors thought that

he could be a competent and trustworthy lawyer.

	In addition to the foregoing testimony, Krule presented

affidavits from George Leighton, formerly a United States district

judge; Dean Robert Johnston of the John Marshall Law School;

and Professor William Carroll and Professor Seng, also of John

Marshall. All of these men supported Krule’’s application and

attested to his fitness to practice law.

	Following the hearing, witness Marilyn Antonik, from Oakton

Community College, reported an incident to the Committee that

changed her opinion of Krule’’s judgment and trustworthiness.

According to Antonik, Krule met with a foreign student at the

college and gave her a gift and a personal note. He also offered to

help her obtain a visa.

	 In his note to the student, which was signed ““Love, Jerry,””

Krule offered to give the student money for a round trip plane

ticket to and from her homeland. This incident frightened the

student, who brought it to the attention of college officials. As a

result, Antonik terminated Krule’’s services with the college.

	The Committee received a copy of Krule’’s note to the student

as well as a copy of a statement from the student regarding Krule’’s

actions. One of the things the student claimed in her statement was

that Krule had shown her a card indicating that he was a lawyer. She also said that Krule had told her not to show the note to

anyone and that the incident scared her.

	In response to this development, Krule’’s attorney wrote to the

Committee and submitted an affidavit from Krule. In his affidavit,

Krule attested that he did not present himself as an attorney to the

student. Rather, he told her he was a paralegal for the Evanston

community defender. The card he showed her was his John

Marshall alumni card. He has no business cards.

	Based upon the foregoing evidence, the Committee decided,

by a vote of 6 to 1, to adhere to its previous determination. The

Committee held that Krule had failed to show that he had been

““sufficiently rehabilitated to demonstrate that he possesses the

character and fitness to practice law.”” Accordingly, it concluded

that it could ““not recommend the certification of Krule and his

application to be admitted to the practice of law in Illinois is

therefore denied.””

	In assailing the Committee’’s determination, Krule takes

particular issue with the Committee’’s consideration of the post-

hearing events involving Krule and the foreign student. Krule

contends that the evidence considered by the Committee consisted

of inadmissible hearsay. He claims that before the Committee relied

on the information from Antonik, it should have afforded him the

opportunity to subpoena and depose her under oath.

	The objections Krule raises to the Committee’’s procedures are

not insignificant. With respect to the matter of the lawyer

identification card, we note that the student was Japanese, and her

statement regarding the incident was written in Japanese. It is

entirely possible that she misunderstood what Krule had told her

about his professional status or that she did understand it, but the

translator simply conveyed what she had written incorrectly when

putting it into English. The way the Committee handled this

evidence, Krule had no opportunity to explore these possibilities.

	Even if the procedures followed by the Committee were not

subject to challenge, the Committee should not have allowed the

post-hearing events involving the foreign student to affect its

ultimate decision. Both Krule and the woman were adults. Krule

was not the woman’’s teacher and held no position of authority over her. The gift he gave her was a cosmetics case, and he made

the offer regarding the plane ticket because she had expressed an

interest in returning to the United States. While he had a romantic

interest in the woman, he did not attempt to force himself on her

in any way. When she did not respond to his overtures, the matter

ended. The two had no further communication. The woman

returned to her homeland, and Krule went about his business. We

fail to see how any of this bears on Krule’’s fitness to practice law.

	Having said that, we nevertheless conclude that the

Committee’’s decision to deny Krule’’s petition for admission to the

bar must be upheld. Contrary to Krule’’s assertions, the incident

involving the foreign student was incidental to the Committee’’s

final determination. In ruling as it did, the Committee reviewed the

circumstances which led to its previous decision, then focused on

whether Krule had shown by clear and convincing evidence that his

rehabilitation is such that he is a fit person to practice law. See In re Loss, 119 Ill. 2d at 196-97.

	The criteria applied by the Committee were those set forth by

our court in In re Childress, 138 Ill. 2d 87, 100 (1990):

			““ ‘‘(1) [C]ommunity service and achievements, as well as

the opinions of others regarding present character; (2)

candor before the court; (3) the age of the applicant at the

time of the offenses; (4) the amount of time which has

passed since the last offense; (5) the nature of the offenses;

and (6) the applicant’’s current mental state.’’ ” ”“ Quoting In re Loss, 119 Ill. 2d at 196.

	The Committee noted that Krule had performed ““a good

amount of community service”” since the Committee had last

considered his case. It credited him with caring for his elderly and

infirm parents. It acknowledged the array of character witnesses he

presented, which was impressive by any standard. Especially

significant to the Committee was that the people with whom Krule

worked at the Evanston community defender’’s office have placed

their trust and confidence in him.

	In contrast to the situation in 1995, when he was first turned

down by the Committee, Krule acknowledged his full role in the

insurance fraud scheme, ““noting that as an insurance professional he had knowledge about the operations of the industry that helped

to further the criminal enterprise.”” He also expressed his remorse

for ““the impact his participation had on individuals and

organizations.””

	Despite these developments, the Committee believed that the

positive aspects of Krule’’s application were still outweighed by the

nature and gravity of the criminal offense for which he had been

convicted. While a mature adult and a licensed professional, he

utilized his professional knowledge to help carry out a criminal

scheme involving deception and dishonesty. Thereafter, he

attempted to minimize his role in the scheme, made

misrepresentations, and failed to disclose three misdemeanors on

his law school application.

	Although Krule was a reliable and committed worker, the

Committee pointed out that his volunteer work ““did not entail the

kind of independence or the exercise of judgment that would

permit a prediction about how Krule would perform in a setting

that did.”” In the Committee’’s view, the circumstances present

when the insurance fraud scheme was formulated back in the 1980s

provided a better insight into how Krule might perform as a lawyer

when his independence and judgment were challenged. The results

were not good. Krule chose to commit a felony.

	Based on the record before it, the Committee was not satisfied

that the result would be different today. Krule professed that he

was sorry and had changed, but the Committee believed that his

words and actions may have been designed simply to satisfy the

requirements of bar admission. Moreover, to the extent Krule was

remorseful, the Committee believed that it may have been remorse

that his conduct interfered with his bar admission rather than a

genuine appreciation for how his illegal conduct affected others.

	In In re Glenville, 139 Ill. 2d 242 (1990), the applicant had a history of juvenile delinquency, arrests for battery and convictions

for disorderly conduct, driving under the influence, and theft. In In re Childress, 138 Ill. 2d 87 (1990), the applicant had been convicted of rape and robbery and sentenced to prison while a

teenager. In In re Loss, 119 Ill. 2d 186 (1987), the applicant’’s history involved juvenile delinquency and convictions for disorderly conduct, possession and sales of marijuana and other drugs, and

theft.

	In each of the foregoing cases, our court denied the applicant’’s

petition for admission. Although the crime for which Krule was

convicted may not be as serious as some of the offenses committed

by Glenville, Childress and Loss, we note that Krule was a mature

adult when he engaged in the fraudulent scheme that culminated in

his conviction. Moreover, his criminal scheme arose in the context

of circumstances comparable to those with which he would be

faced as an attorney, evincing an inability on Krule’’s part to carry

out his professional responsibilities honestly.

	In that regard, the case is similar to In re Ascher, 81 Ill. 2d 485 (1980). Ascher was an accountant, licensed insurance agent

and broker, licensed real estate broker, and an ““enrolled agent””

with the Internal Revenue Service who attended law school later

in life. Prior to passing the bar exam, he was sued by a client for

fraud and breach of his fiduciary duty as a tax accountant and real

estate agent-broker. He was also found to have engaged in a

subterfuge to practice law without a license. Even though Ascher’’s

conduct did not lead to criminal charges as Krule’’s did, this court

nevertheless concluded that it raised fundamental questions

regarding his ““capacity to make those ethical judgments required

of an attorney in the course of his practice and the performance of

his fiduciary responsibilities.”” In re Ascher, 81 Ill. 2d at 500.

	In denying Ascher’’s application for admission to the bar, this

court wrote,

		““The integrity of our profession can be no greater than

that of its members, and we protect neither our profession

nor the public when we admit to the profession those who

have demonstrated the insensitivity to its standards which

is evident here.”” In re Ascher, 81 Ill. 2d at 502.

	We believe this sentiment is applicable to the matter before us

today. As impressive as Krule’’s character references and public

service may be, an applicant’’s subsequent exemplary behavior

cannot lessen the enormity of an earlier offense. In re Childress, 138 Ill. 2d at 101. As we held in In re Childress, 138 Ill. 2d at 104, and as the Committee itself indicated when it last refused to recommend Krule, applicants do not become entitled to admission

simply by fulfilling our educational requirements and participating

in civic and charitable activities.

	The public depends on this court to select qualified

professionals who will be conscientious in protecting their clients

and upholding the law. We take that responsibility seriously. As

careful as we try to be in the selection process, however, we

cannot detect every failing that may afflict an attorney. All we can

do is make our best judgment based on the results of the bar exam,

the contents of the applications and supporting documents, and the

recommendations from the Committee.

	With each law license we confer, there is a risk that the

attorney will not live up to his professional responsibilities. We

depend on the Committee to help us assess that risk. In this case,

the Committee has determined, in effect, that the risk is too great.

We cannot say that its determination is arbitrary. What Krule did

in defrauding the insurance companies is precisely the sort of

conduct which has brought the legal profession into disrepute. He

failed to convince the Committee that he is not going to repeat that

conduct, and he has failed to persuade us. In our view, Krule’’s

admission would deprecate the seriousness of his crime and

undermine the integrity of our profession.

	For the foregoing reasons, Krule’’s application for admission

to the bar is denied.

Petition denied.

					No. M.R. 16045--Agenda 15--September 2000.

					In re JEROME KRULE, Petitioner.

	JUSTICE MILLER, specially concurring:

	I agree with the majority that the petitioner'’s application for

admission to the bar of this state must be denied. I write separately

to explain more fully the basis for my agreement with that

determination and to respond to Justice McMorrow'’s dissent in

this case.

	As the majority recounts, the petitioner, while a licensed

insurance professional, took part in an extensive scheme to

systematically defraud insurance companies. The petitioner took a

job in the office of a person who owned taxi cabs. Whenever a driver was involved in an accident, the petitioner would have the

person go to a particular doctor. The doctor would later send out

inflated bills containing charges for unnecessary or unperformed

services. The petitioner would then submit the bills to insurance

companies for reimbursement. This activity went on from August

1986 through February 1987; according to the petitioner, he

submitted scores of fraudulent claims to eight different insurers.

Indicted the next year, the petitioner was later allowed to plead

guilty to one count of the 82-count indictment in exchange for his

testimony as a witness for the prosecution.

	Justice McMorrow asserts that the effect of today'’s decision

denying the petitioner'’s application for admission to the bar "“is to

impose additional punishment upon him after he has been tried and

served the sentence which was deemed appropriate by agreement

of the court and the prosecution in his criminal case."” Slip op. at 1921

(McMorrow, J., concurring in part and dissenting in part). Justice

McMorrow apparently believes that the seriousness of an

applicant'’s offense must necessarily fade over time, and that, in any

event, the severity of the misconduct should be measured simply by

the criminal sanction imposed at the time of prosecution.

	These notions are contrary to long-standing precedent of this

court. In In re Childress, 138 Ill. 2d 87 (1990), an applicant who had been convicted of rape and robbery 16 years earlier applied for

admission to the bar of this state, long after his release from prison.

The court observed that a felony conviction will not automatically

preclude an applicant'’s admission to the bar, or a disbarred

attorney'’s subsequent reinstatement. The court further explained:

			"“It is clear, however, that the degree of rehabilitation that

must be established to warrant admission or reinstatement

will depend in large measure on the nature of the wrong

committed. Just as a disbarred attorney'’s subsequent

exemplary behavior will not mitigate the seriousness of his

misconduct (In re Alexander (1989), 128 Ill. 2d 524, 534- 35; In re Berkley (1983), 96 Ill. 2d 404, 410), so too will an applicant'’s subsequent exemplary behavior fail to lessen

the enormity of an earlier offense."” Childress,, 138 Ill. 2d at 101. 

Despite the lengthy period of time in that case between the

petitioner'’s offenses and his application, this court concluded that

time alone was not sufficient to overcome the enormity of the

applicant'’s misconduct. The court stated, "“While a person'’s

conduct in the ensuing years is, of course, a relevant circumstance

in assessing rehabilitation, we do not believe that the passage of

time by itself is sufficient to demonstrate the rehabilitation that is

required of someone with a criminal record such as petitioner'’s."”

Childress, 138 Ill. 2d at 102.

 	A number of considerations are relevant in this case. The petitioner was involved in an extensive, fraudulent scheme, and he

played an active role in the commission of those offenses,

Moreover, the petitioner was 45 years old at the time of his

involvement; thus, his offenses were not youthful indiscretions, but

the work of a mature adult, and they were closely related to what

was then his career in insurance. Also, the petitioner, who applied

to and was accepted by his law school after these offenses, was not

completely candid to the school about this misconduct and,

separately, failed to report on his law school application three prior

misdemeanor charges, two of which resulted in guilty pleas. Just as

there are some offenses so egregious that a lawyer who has been

disbarred for committing them may never be readmitted to the bar

(In re Richman, 191 Ill. 2d 238, 247-48 (2000); In re Rothenberg, 108 Ill. 2d 313, 326 (1985)), so too, I believe, are there offenses

so serious that one who has committed them should never be

entitled to admission to the bar in the first place. Without

determining whether the present offenses fall into that category, I

believe that it is clear that the petitioner'’s application must be

denied. The nature and gravity of the petitioner'’s misconduct, his

age when he engaged in it, and his later lack of candor concerning

these and prior offenses on his law school application and in the

ensuing application process all militate against his admission to the

bar.

	JUSTICE RATHJE joins in this special concurrence.

	JUSTICE McMORROW, concurring in part and dissenting in

part:

	I am in agreement with the majority that the evidence relating

to the post-hearing events involving petitioner Jerome Krule and

a foreign student was inappropriately admitted and should not have

affected the ultimate decision of the Committee on Character and

Fitness (Committee). I respectfully dissent, however, from the

majority’’s denial of petitioner’’s application for admission to the

bar.

	Initially, I recognize that the privilege to practice law is exactly

that, a privilege and not a right. However, that privilege should not

be denied absent cogent reason. Although, in reviewing the merits

of petitioner’’s application for admission to the bar, my colleagues

note the many positive aspects of his application, they nevertheless

find that ““[a]s impressive as Krule’’s character references and public

service may be, an applicant’’s subsequent exemplary behavior

cannot lessen the enormity of an earlier offense.”” Slip op. at 9.

After stating that petitioner’’s involvement in the insurance scheme

is ““precisely the sort of conduct which has brought the legal

profession into disrepute,”” the majority concludes that Krule

““failed to convince the Committee that he is not going to repeat

that conduct, and he has failed to persuade us. In our view, Krule’’s

admission would deprecate the seriousness of his crime and

undermine the integrity of our profession.”” Slip op. at 10.

	As I studied and pondered the majority opinion, one lingering

question always remained: What more could petitioner have done

that he did not already do to enable him to be allowed the privilege

to practice law? Stated otherwise, is there anything petitioner failed

to do to justify refusing him a license to practice law. The majority

does not answer this essential question. Instead, in denying Krule’’s

admission application, my colleagues appear to single-mindedly

focus upon the seriousness of petitioner’’s past offense, to the

virtual exclusion of the ample amount of positive evidence

presented in petitioner’’s favor during the Committee hearing.

	The analysis employed by the majority in assessing the merits

of petitioner’’s admission petition does not adhere to this court’’s

prior pronouncements with respect to evaluating whether an

individual has shown sufficient rehabilitation of character and fitness so that an application for admission to the bar may be

granted. It is well settled that, although the nature of an applicant’’s past misconduct is one important consideration in assessing his or

her rehabilitation, a record of felony conviction need not by itself automatically preclude one’’s admission to practice law in Illinois. In re Childress, 138 Ill. 2d 87, 100-01 (1990); In re Loss, 119 Ill. 2d 186, 196 (1987); In re Mitan, 75 Ill. 2d 118, 126 (1979). Additional factors to be considered in determining a petitioner’’s

rehabilitation are the petitioner’’s record of community service and

achievements, as well as the opinions of others with respect to

petitioner’’s present character; the candor of petitioner before the

court; petitioner’’s age at the time of the offenses; the amount of

time which has passed since the last offense; and the current mental

state of petitioner. Childress, 138 Ill. 2d at 100; Loss, 119 Ill. 2d at 196.

	Both the Committee in its findings, and the majority in its

opinion, stress that although Krule presented a substantial amount

of evidence in his favor during the hearing, this evidence did not

overcome his 1988 felony conviction. There is no question that

petitioner committed a serious offense and that he was a mature

adult when he engaged in this misconduct. However, the

seriousness of petitioner’’s crime has already been adjudicated. The

record reveals that, as part of an agreement with the prosecuting

office, petitioner pled guilty to one count of theft, in exchange for

his assistance in investigating the insurance scheme and for his

testimony on behalf of the government against other scheme

participants. At the culmination of the criminal proceedings, the

trial court evaluated petitioner’’s offense and sentenced him to 30

months’’ probation, conditioned upon his performance of 950 hours

of community service. The record also reveals that the court

released petitioner early from his probation.

	It is axiomatic that the seriousness of petitioner’’s crime

remains constant. It does not diminish with the passage of time. It is precisely because the gravity of the offense will be the same 10,

15, or 20 years henceforth–and forevermore–that this court has

looked to factors in addition to the seriousness of the crime

committed to determine whether an applicant has been sufficiently

rehabilitated to be admitted to the practice of law. In other words,

we must consider the seriousness of petitioner’’s offense against the

backdrop of the various indicia of rehabilitation of character and

fitness. The egregious conduct of petitioner, though deserving of

considerable weight, should not be the overriding factor in assessing petitioner'’’s fitness to practice law. The majority clearly

primarily bases its decision on the crime petitioner committed more

than 10 years ago.

	As stated, this court has previously held that a petitioner’’s

community service and achievements, the opinions of others

regarding his present character, petitioner’’s candor about his past

misconduct, and his present mental state all constitute important

indicia of rehabilitation. A wealth of information with respect to

these factors was introduced by petitioner during the hearing. It

was established that since 1995, petitioner has performed extensive

volunteer work with the Evanston Community Defender Office

(ECDO), which provides free legal and social work services to low

income Evanston residents under the age of 21. Robert Roy, the

director of ECDO, and Judge Fe Fernandez, a former staff attorney

with this organization, testified on petitioner’’s behalf. Both

witnesses informed the Committee that, at the time petitioner

approached them about volunteering with their organization, he

was very open about his background. In Roy’’s words, petitioner

spoke with ““agonizing candor”” about his past difficulties. Both Roy

and Fernandez stated that petitioner acknowledged that he made

serious mistakes in his past, that his involvement with the insurance

scheme was wrong, and that he showed a great deal of remorse for

his past misconduct. Roy testified that there was no question in his

mind that petitioner accepted full responsibility for his past criminal

behavior. Roy informed the Committee that he frequently discussed

ethical issues with petitioner, and that he often provided petitioner

with written materials concerning ethics in the law.

	Both Roy and Fernandez testified that petitioner performed a

wide variety of legal and nonlegal tasks while volunteering at

ECDO, including answering telephones, transporting witnesses to

and from court, interviewing clients for background information,

serving subpoenas, conducting factual investigations, and

performing some legal research. Both witnesses testified that

petitioner did a very good job in completing all tasks assigned to

him, that he showed genuine concern and compassion for the

clients, that he communicated well with the clients, and that the

clients had many positive things to say about petitioner. Fernandez

testified that petitioner would make an ““excellent”” lawyer, and Roy stressed that petitioner took his work very seriously and had been

““very responsible.”” Both witnesses characterized petitioner as

honest and trustworthy, and both recommended him for the bar

without hesitancy or reservation.

	During the hearing it was also established that for the past

several years petitioner served as a volunteer tutor for adult literacy

and education at both Oakton Community College and at the East

Prairie School District in Skokie. Marilyn Antonik and Patricia

McCarthy, the supervisors of these respective programs, testified

that petitioner interacted very well with the students, who come

from many different cultural backgrounds. Both witnesses attested

to petitioner’’s dedication to his students, with McCarthy describing

petitioner as ““very supportive, and concerned and caring,”” and with

Antonik testifying that petitioner ““has gone way beyond what a

tutor needs to do.”” Both witnesses stated that petitioner has

generously devoted his time to these programs, and described him

as ““trustworthy,”” ““sincere”” and ““committed.”” Antonik expressed

the ““utmost confidence”” in petitioner, testified that he conducted

himself in a ““professional”” manner, and drew a distinction between

petitioner’’s sincere commitment to his students and that of other

volunteers who were required to do community service and who

simply went ““through the motions.””

	Also testifying on behalf of petitioner was Ralph Ruebner, a

professor at John Marshall Law School. Professor Ruebner stated

that he became acquainted with petitioner as a result of their living

in the same neighborhood, and when petitioner began attending

John Marshall, they struck up a friendship. Professor Ruebner

testified that petitioner candidly revealed to him his past difficulties,

and that Ruebner recommended that petitioner volunteer at ECDO

because he felt it would ““contribute to his rehabilitation process.””

Professor Ruebner, a highly respected member of the legal

community, expressed his belief that petitioner has ““fully

rehabilitated himself,”” explaining that he has observed significant

changes in petitioner’’s behavior over the past years. Professor

Ruebner stated that petitioner has ““matured,”” to the extent that he

is very humble and expresses remorse and responsibility for his past

wrongdoing. Professor Ruebner also testified that petitioner is a

very caring individual, as evidenced by the type of community work he has done, as well as by the fact that petitioner is the

primary care giver for two very ill, elderly parents. Professor

Ruebner concluded that petitioner would make a competent and

trustworthy lawyer.

	Attorney Elmer Gertz also testified on petitioner’’s behalf.

Gertz related that petitioner had been one of his students at John

Marshall Law School and also that petitioner was a family friend.

In Gertz’’s view, petitioner would be an ethical and trustworthy

lawyer. Gertz also testified that, because of petitioner’’s adverse

experiences in the past, petitioner would be keenly aware of ethical

problems and would know what situations to avoid.

	The final witness for petitioner was Edward O’’Reilly, a

sergeant with the Chicago police department and a fellow

classmate of petitioner at John Marshall. Sergeant O’’Reilly testified

that petitioner was supportive of him during law school, and

described petitioner as a ““good human being”” who is ““kind,””

““trustworthy,”” ““reliable,”” and ““honest.”” O’’Reilly informed the

Committee that, during law school, petitioner candidly disclosed

his background to him, and at that time petitioner was embarrassed

and sorry for his past misconduct. O’’Reilly stated that petitioner

would be ““an asset”” to the bar, and that petitioner’’s past

experiences ““would be a positive influence on his practicing law.””

In O’’Reilly’’s opinion, petitioner is ““fully rehabilitated,”” and he

would conduct himself in a law-abiding and ethical manner.

O’’Reilly concluded that although he always had a high opinion of

petitioner, that opinion has been further increased by petitioner’’s

extensive volunteer community work.

	Petitioner also testified during the hearing. Petitioner stated

that if he were to attain a law license, he would treat it ““[a]s if it

were gold.”” On several occasions during his testimony, petitioner

expressed remorse for his past misconduct. Petitioner testified that

he has ““moved in every possible direction to correct that type of

behavior and to make sure that it won’’t happen again.”” According

to petitioner, his motivation for cooperating with the authorities

during the insurance scheme prosecution was to ““try and correct

some of the harm that I did and put an end to it also.”” Petitioner

revealed that he testified in the criminal case involving other

defendants who had participated in the insurance scheme, even though he had received death threats, and even though his

agreement with the prosecution did not require him to do so.

Petitioner also stated that by performing his present volunteer

community service, ““I’’ve tried to correct what I did or do what I

can to correct what I did.”” Although petitioner stated that he

realized that he cannot ““erase”” his past misconduct, he testified that

““I can do everything in my power to change myself, which I have

tried to do, tried to grow and develop in another direction totally,

and I’’m very sorry for what I did.”” Petitioner also candidly

admitted to the Committee that he played a ““major role”” in the

insurance scheme, and acknowledged that he used his ““insurance

experience”” in furtherance of that scheme. Petitioner testified that

if he is ever able to practice law, his desire is to practice in the

public sector, perhaps even as an attorney with ECDO.

	Also submitted in support of petitioner’’s application for

admission were several affidavits attesting to his rehabilitation and

fitness. Judge George Leighton, formerly of the United States

district court and a past commissioner and chairman of the

Committee on Character and Fitness, stated that he became

acquainted with petitioner when petitioner was a student at John

Marshall. Judge Leighton averred that petitioner is a fit applicant

for admission to the bar and stressed that he does ““not make this

statement lightly.”” Judge Leighton stated that petitioner has

conducted himself in an ““outstanding fashion,”” and he commended

petitioner for his dedication to his volunteer work and his

willingness to assist those less fortunate. Judge Leighton concluded

by stating that petitioner has shown a ““true desire to be a

productive contributing member of society”” and that his conduct

““demonstrates that he has been totally rehabilitated.””

	Also submitting affidavits on petitioner’’s behalf were several

faculty members of John Marshall Law School. Robert Johnston,

the dean of John Marshall, averred that prior to petitioner’’s

acceptance at the school, then-Dean Helen Thatcher interviewed

petitioner and reviewed the circumstance of his conviction. Dean

Johnston stated that, based upon conversations with John Marshall

faculty and staff, petitioner was open and candid with Thatcher

about the circumstances of his conviction. Dean Johnston further

stated that while a student at John Marshall, petitioner conducted himself in an ethical manner and ““accepted responsibility for his

conviction.”” Dean Johnston believes that petitioner understands the

ethical obligations of the legal profession and will abide by them.

Professor William Carroll averred that he became acquainted with

petitioner while he was a student in three of his classes. Citing

petitioner’’s extensive volunteer work on behalf of indigent

individuals, Professor Carroll concluded that petitioner has

““conducted himself in an exemplary fashion and has demonstrated

his rehabilitation.””

	In sum, several highly regarded members of the legal

community offered evidence in support of petitioner’’s application

for admission to the bar. The import of this uncontroverted

evidence is that petitioner is a trustworthy and honest individual,

that he has been candid about his past misconduct, that he accepts

responsibility for his part in the insurance scheme, that he has

expressed remorse, and that, based upon his performance and

service to the community in the more than a decade that has

followed his conviction, his admission to the bar should be

approved. Indeed, both the Committee in its findings, and my

colleagues in their opinion, acknowledge that petitioner has

performed ““a good amount of community service”” since 1995, and

that he assembled an ““impressive”” group of character witnesses

who attested to his rehabilitation, remorse for his past conduct, and

his fitness to practice law. Inexplicably, however, both the

Committee and the majority discount the value of this

uncontradicted evidence, and instead resort to mere speculation

and unsupported conclusions as the basis for denying petitioner’’s

application for admission to the bar.

	Indeed, this court has recently spoken against relying on

speculation in the context of attorney fitness matters. In In re Eckberg, 192 Ill. 2d 70 (2000), we held that imposition of conditions upon an attorney’’s continued practice of law, based on

incapacity, was not warranted. We rejected the recommendation of

the Review Board that, based upon the attorney’’s past mental

health problems, he only be allowed to practice law on the

condition, inter alia, that he continue in the course of regular mental health treatment to avert a relapse. We held that ““[i]t would

be too speculative for this court to conclude that, in the future, respondent will experience mental difficulties which will

incapacitate him from continuing to practice law.”” Eckberg, 192 Ill. 2d at 89-90. Although the context of the case at bar is somewhat

different from that in Eckberg, this rationale applies with equal force here, and establishes that the majority’’s reliance upon

speculation is inappropriate.

	For example, despite the extensive amount of evidence

introduced with respect to the scope, extent and beneficial value of

petitioner’’s volunteer work, the majority accepts the Committee’’s

unsupported conclusion that ““the circumstances present when the

insurance fraud scheme was formulated back in the 1980s provided

a better insight into how Krule might perform as a lawyer.”” Slip

op. at 8. The majority draws a similarly unsupported and

hypothetical conclusion when it writes that petitioner’’s ““criminal

scheme arose in the context of circumstances comparable to those

with which he would be faced as an attorney, evincing an inability

on Krule’’s part to carry out his professional responsibilities

honestly.”” Slip op. at 9. There is no basis in the record from which

the majority may validly rely upon in such speculation.

	Additional unsupported and speculative conclusions are

accepted by the majority with respect to the motivation and

sincerity of petitioner’’s candor in acknowledging responsibility for

his part in the insurance scheme, as well as petitioner’’s remorse for

his past misconduct. Completely discounting the veracity of

petitioner’’s testimony, my colleagues not only accept that the

““Committee believed that [petitioner’’s] words and actions may

have been designed simply to satisfy the requirements of bar

admission, ”“ but also accept that ““to the extent [petitioner] was

remorseful, the Committee believed that it may have been remorse

that his conduct interfered with his bar admission rather than a

genuine appreciation for how his illegal conduct affected others.””

Slip op. at 8. Again, there is no basis in this record from which the

majority can reject the evidence presented during the hearing and

speculate with respect to petitioner’’s motives.

	Finally, the majority also accepts the Committee’’s conclusion

that petitioner’’s work ““did not entail the kind of independence or

the exercise of judgment that would permit a prediction about how

[he] would perform in a setting that did.”” Slip op. at 8. It appears, however, that the Committee and the majority would require

petitioner to perform the impossible: to present a record of

““exercise of judgment”” in a legal setting, comparable to that of an

attorney, when petitioner cannot validly engage in such conduct.

During his testimony, the Committee inquired of Robert Roy

whether petitioner, while performing volunteer work at ECDO,

had occasion to make ““serious judgment calls.”” Roy replied that

petitioner faced a dilemma, and explained that there is ““a fine line

there, because when you start talking about serious judgment calls,

what you’’re talking about is exercising discretion in the practice of

law, and I never wanted to put [petitioner] in the position of doing

that.”” Roy further testified that in an effort to remedy this dilemma,

he advised petitioner to apply for a Rule 711 license, so that

petitioner could perform limited legal services under his

supervision. Roy testified that after this application was rejected,

he was very mindful not to place petitioner in the position where

his actions could be construed as the unauthorized practice of law.

	 The decision of the majority to deny petitioner’’s application,

despite the fact that the record contains substantial, uncontradicted

evidence of petitioner’’s rehabilitation and present good moral

character and fitness to practice law, leads me to the conclusion

that, in this case, the majority has determined that regardless of the

amount of positive evidence presented in petitioner’’s favor, the

nature of petitioner’’s offense automatically precludes his admission

to the bar.

	The clear and unmistakable effect of denying this petitioner the

opportunity to sit for the bar examination is to impose additional

punishment upon him after he has been tried and served the

sentence which was deemed appropriate by agreement of the court

and the prosecution in his criminal case.  What Justice Heiple said

in his dissenting opinion in People v. Malchow, No. 88228 (September 21, 2000), rings true here. Although Malchow presented facts and issues different from the matter at bar, Justice

Heiple’’s thoughts are equally applicable here: ““What matters is that

the State has already had its opportunity to impose whatever

measure of retribution against defendant the criminal law allows.

Once an offender has served his sentence, the punishment must

stop.”” Malchow, slip op. at 15-16 (Heiple, J., dissenting). In the case at bar, the punishment has not stopped, but continues. One

wonders whether, because of the emphasis this courte majority places on

the seriousness of his crime many years after petitioner served the

sentence given him, many years after petitioner expressed remorse,

and after many years of performing satisfactorily his work in the

legal arena, petitioner will ever be givenallowed the opportunity to

obtain a license to practice law.

	For these reasons, I dissent from the denial of petitioner’’s

application for admission to the bar.