Filed May 10, 2018

In re Ernest Eugene Wiley, Jr.
Respondent-Appellant/Cross-Appellee

Commission No. 2016PR00062

Synopsis of Review Board Report and Recommendation
(May 2018)

The Administrator brought a three-count complaint against Respondent, alleging that he represented three clients after he was removed from the master roll of attorneys for failure to timely register, and charging him with engaging in the unauthorized practice of law, engaging in dishonesty, failing to consult with a client regarding a limitation on his practice, and engaging in conduct prejudicial to the administration of justice, in violation of 2010 Illinois Rules of Professional 5.5(a), 8.4(c), 1.4(a)(5), and 8.4(d), respectively.

Respondent, who represented himself throughout his disciplinary proceedings, participated in some but not all of the pre-hearing proceedings. Following the hearing, at which Respondent did not appear, the Hearing Board found that Respondent had engaged in the unauthorized practice of law and dishonesty, but not the other charged misconduct. It recommended that, for his misconduct, Respondent be suspended for six months and until further order.

Respondent appealed, challenging the Hearing Board's findings of misconduct as well as its sanction recommendation. The Administrator cross-appealed, challenging the Hearing Board's finding that Respondent had not violated Rule 1.4(a)(5).

The Review Board affirmed the Hearing Board's findings of misconduct, finding no merit to Respondent's or the Administrator's legal arguments challenging the misconduct findings.

The Review Board also agreed with the recommendation that Respondent be suspended for six months and until further order. It found that a six-month suspension was commensurate with Respondent's misconduct and supported by case precedent.

Regarding the suspension until further order, the Review Board found that Respondent had failed to recognize or acknowledge that he had engaged in misconduct, and had failed to express remorse for his actions. It also found that Respondent's arguments on appeal showed that he did not understand or accept his ethical obligation to timely register with the ARDC as a precursor to practicing law. It concluded that Respondent was, at that time, unable or unwilling to conform his behavior to the Rules of Professional Conduct, and therefore that he should be required to demonstrate his fitness before he returns to the practice of law.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

ERNEST EUGENE WILEY, JR.,

Respondent-Appellant/Cross-Appellee,

No. 6208533.

Commission No. 2016PR00062

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

The Administrator brought a three-count complaint against Respondent, alleging that he represented three clients after he was removed from the master roll of attorneys for failure to timely register, and charging him with engaging in the unauthorized practice of law, engaging in dishonesty, failing to consult with a client regarding a limitation on his practice, and engaging in conduct prejudicial to the administration of justice, in violation of 2010 Illinois Rules of Professional 5.5(a), 8.4(c), 1.4(a)(5), and 8.4(d), respectively.

Respondent, who represented himself throughout his disciplinary proceedings, participated in some but not all of the pre-hearing proceedings. Following the hearing, at which Respondent did not appear, the Hearing Board found that Respondent had engaged in the unauthorized practice of law and dishonesty, but not the other charged misconduct. It recommended that, for his misconduct, Respondent be suspended for six months and until further order.

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Respondent appeals, challenging the Hearing Board's findings of misconduct as well as its sanction recommendation. The Administrator cross-appeals, challenging the Hearing Board's finding of no violation of Rule 1.4(a)(5).

For the reasons that follow, we affirm the Hearing Board's findings and agree with its recommendation that, for his misconduct, Respondent be suspended for six months and until further order.

FACTS

Respondent was admitted to the practice of law in Illinois in 1992.

Respondent's Misconduct

Respondent did not timely register or pay his registration fee to the ARDC for the year beginning on January 1, 2015. After receiving two notices about his failure to register, Respondent was removed from the Master Roll on March 10, 2015. He eventually registered and paid the fees that were due and was restored to the Master Roll on November 17, 2015.

Between March 10 and November 17, however, Respondent represented clients in three matters. Each matter forms the basis of a count in the complaint, and is described fully in the Hearing Board's report. There are no issues raised regarding the Hearing Board's factual findings that Respondent represented three clients between March 10 and November 17, 2015.

Respondent also was removed from the Master Roll in each of the years from 2003 to 2007, 2010, and 2011 for failure to register and/or failure to comply with his MCLE requirements. After receiving notice of those removals, Respondent registered, paid any fees and penalties that were due, and was restored to active status.

Respondent requested and received waivers of his 2016 and 2017 registration fees because of his demonstrated low income.

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Pre-hearing Proceedings

Respondent answered the complaint and participated in three pre-hearing conferences, but failed to file a report disclosing persons who have knowledge of the subject of the proceeding as required by Rule 253, and failed to appear for his deposition. Respondent also did not appear for his hearing on its originally scheduled date because he was hospitalized the night before. The hearing panel chair granted a one-month continuance, but told Respondent that the hearing would not be continued again and that Respondent should obtain counsel if there was any concern about his ability to represent himself due to his health.

On the morning of his rescheduled hearing, about an hour before the hearing was to begin, Respondent filed a motion to continue the hearing, on the ground that he had just found counsel to represent him and his counsel needed more time to prepare for the hearing. When the hearing convened, neither Respondent nor his counsel was present. The hearing panel chair denied the motion to continue under Commission Rule 272, finding that procurement of counsel was not an exigent circumstance that warranted granting a continuance. The hearing then proceeded without Respondent.

HEARING BOARD'S FINDINGS AND RECOMMENDATION

Misconduct Findings

Based on its finding that Respondent represented clients during a time when he was not registered to practice law, the Hearing Board found that Respondent had violated Rule 5.5(a) by practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.

The Hearing Board also found that Respondent's unauthorized practice was dishonest. It found that he was notified by the ARDC that his name was removed from the

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Master Roll and that he was no longer authorized to practice law, and yet continued to represent clients and failed to inform opposing counsel or the courts that he was not authorized to practice law. It relied upon In re Thomas, 2012 IL 113035, in holding that Respondent's unauthorized practice perpetrated a fraud upon the court and constituted dishonesty because Respondent willfully ignored notifications that he was not authorized to practice. It further held that, as in Thomas, even if Respondent sincerely believed that he was authorized to practice, his belief was unreasonable.

As to each count, the Hearing Board declined to find that Respondent had failed to consult with a client about a limitation on his conduct, reasoning that there was no testimony from Respondent or the client involved in each matter, or evidence of written communications between Respondent and the client, on this issue. It thus found that the Administrator did not prove a violation of Rule 1.4(a)(5) by clear and convincing evidence.

Similarly, as to each count, it found no violation of Rule 8.4(d), concluding that that rule requires actual prejudice to the administration of justice, and that there was no evidence of an impact on Respondent's clients or the proceedings because of his unauthorized practice.

Findings Regarding Mitigation and Aggravation

The Hearing Board found no evidence of mitigation. In aggravation, it found that Respondent failed to attend his hearing and failed to cooperate fully in the pre-hearing proceedings, which resulted in an order barring him from testifying or presenting witnesses. It found that he had not acknowledged his wrongdoing or expressed remorse for his conduct. It further found that his insistence in his answer that he was authorized to practice law even though he was not registered with the ARDC showed that he did not have a clear understanding of his

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professional obligations. It also found that his misconduct was not limited to an isolated incident but rather involved a pattern of wrongdoing that involved three separate client matters.

Finally, it found that, in 2011, Respondent was suspended, on consent, for two years and until further order, with all but the first five months stayed by probation, for converting escrow funds, failing to hold the funds separate from his own property, neglect, failing to communicate, and charging an unreasonable fee. It found that, while his prior misconduct was different from his present misconduct, the prior disciplinary matter should have given Respondent an increased awareness of all of his professional obligations.

Recommendation

The Hearing Board recommended that Respondent be suspended for six months and until further order, as requested by the Administrator. It stated that Respondent's failure to appear for his deposition and at his hearing demonstrated a lack of respect for the disciplinary process, and that it saw no evidence that Respondent was able or willing to meet professional standards of conduct in the future, and that both of these factors warranted a suspension until further order.

ANALYSIS

On appeal, Respondent admits that he practiced law during the time when he was removed from the Master Roll for failing to timely register, but argues that the Court's ruling in People v. Brigham authorized him to practice law even while he was not registered. He also contends that the Administrator should not have been allowed to bring Counts I and II against him, because an investigation was opened only as to the allegations in Count III. Last, he contends that, if he is found to have committed misconduct, a suspension of six months and until further order is not supported by authority, and that a lesser sanction is warranted by his conduct.

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On cross-appeal, the Administrator contends that the Hearing Board erred in finding no violation of Rule 1.4(a)(5) as to Count III, because Respondent admitted facts that would support a finding of misconduct. Even with an additional finding of misconduct, however, he agrees with the Hearing Board's recommendation of a suspension of six months and until further order.

We find no error in the Hearing Board's misconduct findings, and agree with its sanction recommendation.

1.    The Hearing Board did not err in finding that Respondent's practice while he was removed from the Master Roll for failure to register was unauthorized.

Respondent acknowledges that he practiced law while he was removed from the Master Roll, and that Supreme Court Rule 756(b) provides that an attorney who is not listed on the Master Roll is not authorized to practice law in Illinois. He contends, however, that Supreme Court Rule 753(e)(2) provides that Hearing Board reports must be consistent with prior holdings of the Illinois Supreme Court, and that, in People v. Brigham, 151 Ill. 2d 58, 600 N.E.2d 1178 (1992), the Court effectively held that Rule 756 was inoperable by holding that an attorney whose license has been suspended for failure to pay dues may still be "counsel" for sixth-amendment purposes. He thus argues that Brigham supports his belief that he was still authorized to practice law despite not paying his registration fee on time and "being marked ?unauthorized' by the ARDC," and therefore that the Hearing Board's report violates Rule 753(e)(2) because it is inconsistent with Brigham. (Appellant's Brief at 2).

Respondent also raised this issue before the Hearing Board (see Hearing Bd. Report at 10), and we agree with the Hearing Board's thorough and well-reasoned analysis. As the Hearing Board concluded, Brigham does not render Rule 756 inoperable, because it addressed only the narrow question of whether a client was deprived of his Sixth Amendment

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right to counsel where his attorney had been removed from the Master Roll for failure to register. The Court held that the client had received effective assistance of counsel, even though his attorney was not authorized to practice because of his failure to register. That is an entirely different issue than that before us now.

Moreover, this Board previously addressed an argument similar to Respondent's and rejected it. See In re Scott, 2010PR00096 (Review Bd., Dec. 20, 2011), petition for leave to file exceptions denied, M.R. 25181 (March 19, 2012). In affirming the Hearing Board's finding that the respondent had violated Rule 5.5(a), this Board rejected the respondent's argument that the Administrator lacked authority to file a complaint because the respondent had paid his registration fee before the complaint was filed, stating:

Whether there are disciplinary consequences to an attorney's unauthorized practice of law is a different issue from whether such conduct impacts a criminal or civil case in which the attorney in question appears. Neither Brigham nor Applebaum precludes the filing of disciplinary charges when an attorney continues to practice when he or she is not authorized to do so.

Id. at 5.

The same rationale and holding apply here. Accordingly, Respondent's argument that Brigham precluded the Rule 5.5(a) misconduct finding against him is without merit.

2.    The Hearing Board did not err in finding misconduct as charged in Counts I and II. 

Respondent first contends that this disciplinary matter arose out of a request for investigation brought to the ARDC by his opposing counsel in the matter described in Count III, and that, by going beyond the issue set forth in that request for investigation, the Administrator engaged in a "fishing expedition" and "violated his own [r]ule" that the investigation must be confined to the issues noted in the original complaint, citing In re Thompson, 198 N.E.2d 337 (1963).

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Respondent's argument is without merit. Thompson addressed a due process issue involving discipline for uncharged misconduct, and has no application to the present matter. Illinois Supreme Court Rule 752(a)1 allows the Administrator, on his own motion, to investigate attorney conduct; and Commission Rule 512 allows the Administrator, on his own motion, to initiate an investigation, based upon information from any source. In the present matter, the Administrator acted in accordance with both of those rules.

Respondent also argues that he filed a motion for summary judgment in favor of the ARDC, admitting to the allegations and misconduct in Count III. He contends that, if it had been granted, additional discovery and the hearing could have been avoided and the proceeding would have gone straight to the Report and Recommendation phase.

The Hearing Board's decision to deny Respondent's summary judgment motion is reviewed for an abuse of discretion. See In re Coyle, 2015PR00041 (Review Bd., Feb. 16, 2017), at 7, petition for leave to file exceptions denied, M.R. 28670 (May 18, 2017) ("We defer to the hearing panel on evidentiary and procedural issues and decline to reverse sanction orders absent a clear abuse of discretion" (citations omitted)). An abuse of discretion occurs only when no reasonable person would take the position adopted by the Hearing Panel. Id. (citations omitted).

Respondent has not presented an argument or evidence showing that the hearing panel chair abused her discretion in denying his summary judgment motion. Moreover, Commission Rule 235 provides that "dispositive motions such as those seeking summary judgment or dismissal prior to completion of the evidentiary record on charges shall not be permitted." Respondent thus would be hard-pressed to show that the hearing panel chair abused her discretion in denying his motion for summary judgment when the hearing panel chair acted

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in accordance with the rules of the ARDC. See id. (holding that "we cannot conclude that the Hearing Panel abused its discretion in this matter, because it abided by the Commission Rules").

Respondent next contends that, because the Administrator went beyond the issues set forth in the initial request for investigation, he properly asserted attorney-client and Fifth-Amendment privileges in his answer, but now is being wrongly accused of not cooperating in his disciplinary proceeding and subjected to a "punishing" six-month suspension.

Respondent's argument essentially goes to the issue of aggravation, but because it is based upon his claim that he should not have been charged with and found to have committed the misconduct alleged in Counts I and II, we address it here. As we have already found, all of the charges against Respondent were properly filed and considered. Furthermore, Respondent has not explained why he failed to cooperate with respect to Count III, which he does not argue was improperly brought against him. Respondent's arguments about Counts I and II do not justify his failure to participate in pre-hearing proceedings or attend his disciplinary hearing.3

Last, Respondent argues, without elaboration, that the "?Nature' and ?Extent' of [his] law practice represents [sic] additional issues." (Id. at 3.) It is unclear what he means by this, but we assume that Respondent contends that the Hearing Board erred in not considering evidence regarding the nature and extent of his law practice, presumably in mitigation. The Hearing Board made no such error because there was no such evidence. It was Respondent's responsibility to participate in his disciplinary proceedings and establish mitigation, but he failed to do so. The Hearing Board was not responsible for speculating about mitigation. In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (respondent is responsible for establishing mitigation; the Court will not speculate about possible mitigation).

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3.    The Hearing Board did not err in finding no violation of Rule 1.4(a)(5). 

On cross-appeal, the Administrator contends that the Hearing Board erred in finding insufficient evidence that Respondent violated Rule 1.4(a)(5) by failing to consult with a client about a relevant limitation on his conduct. The Administrator notes that Respondent admitted in his answer to the complaint that, as alleged in Count III, Respondent did not notify his client that he was not authorized to practice law in Illinois. The Administrator contends that this constitutes a judicial admission, and therefore that he was not required to present additional evidence proving Respondent's admission. He argues that the Hearing Board should have accepted Respondent's admission and found that Respondent violated Rule 1.4(a)(5) by failing to inform his client that he could not represent her. He asks this Board to reverse the Hearing Board's finding to the contrary. We cannot do so because we find no error in the Hearing Board's finding that the Administrator failed to prove that Respondent violated Rule 1.4(a)(5).

A judicial admission is a deliberate, clear, and unequivocal statement by a party about a concrete fact within the party's knowledge. It cannot be contradicted at trial. In re Estate of Rennick, 181 Ill. 2d 395, 406, 692 N.E.2d 1150 (1998) (citations omitted). In order to constitute a judicial admission, a statement cannot be "a matter of opinion, estimate, appearance, inference, or uncertain summary." Smith v. Pavlovich, 394 Ill. App. 3d 458, 468, 914 N.E.2d 1258 (5th Dist. 2009) (citation omitted); Serrano v. Rotman, 406 Ill. App. 3d 900, 907, 943 N.E.2d 1179 (1st Dist. 2011) (citation omitted). Moreover, whether a party's statement constitutes a judicial admission must be decided under the circumstances of each case; a statement must be given a meaning consistent with the context in which it is found, and considered in relation to other testimony and evidence presented. Id. (citations omitted).

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Respondent's answer to the complaint stated:

27. At no time between March 11, 2015 and October 1, 2015 (the date Respondent registered and paid his past-due registration fees and penalties for his 2015 registration), did Respondent notify Tobias or O'Quinn that he was not authorized to practice law in Illinois pursuant to an Illinois license.

ANSWER: Respondent admits, as he was indeed authorized to practice law in Illinois pursuant to People v. Brigham, 600 N.E. 2nd 1178, at 1185, a 1992 Illinois Supreme Court case. Thus, it would have been inappropriate and untrue to so notify that I was not authorized when I was.

(Answer, par. 27.)

Respondent's answer thus admits that he did not notify his client (Tobias) that he was not authorized to practice law between March 11 and October 1, 2015, but qualifies that admission with his assertion that he was authorized to practice law in Illinois, and therefore that it would have been inappropriate and untrue to notify his client and opposing counsel that he was not authorized to practice law.

In order to address the Administrator's argument, we must determine in the first place if Respondent's qualified admission (i.e., that Respondent did not notify his client that he was unauthorized to practice law because he was authorized to practice law under Bingham) constitutes a judicial admission. We do not believe it does, because we find that it is a statement about "a matter of opinion" or "inference" - and therefore not a judicial admission - rather than a deliberate, clear, and unequivocal statement about a concrete fact.

Moreover, we believe the proper time to resolve whether or not Respondent's statement in his answer constituted an admission was prior to or at Respondent's hearing, by way of a motion that the hearing panel chair could address. It is not this reviewing body's place to decide the meaning of Respondent's answer, and thereby determine if it constituted an admission and, if so, what kind. See Serrano v. Rotman, 406 Ill. App. 3d 900, 907, 943 N.E.2d 1179 (1st

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Dist. 2011) (reviewing trial court's finding that a statement was not a judicial admission under an abuse of discretion standard, and concluding that the trial court did not abuse its discretion in finding that the statement was not a judicial admission, but was an evidentiary admission).

Even if Respondent's statement in paragraph 27 of his answer were regarded as a judicial admission, we are not convinced that Rule 1.4(a)(5)4 should apply in this case. The Administrator has cited no case in which this rule was applied in a situation such as this one, where the limitation on the lawyer's conduct was the lawyer's removal from the Master Roll for failure to register. There appear to be only two Illinois cases in which a charge of misconduct was based on Rule 1.4(a)(5). One is in this matter (where the Hearing Board declined to find a Rule 1.4(a)(5) violation), and the other is In re Lisonbee, 2017PR00103, petition for reciprocal discipline allowed, M.R. 28975 (Nov. 20, 2017), in which reciprocal discipline was imposed on an Illinois-licensed attorney based upon his misconduct in Nebraska. In Lisonbee, neither the petition for reciprocal discipline nor the opinion in the underlying Nebraska matter explained the basis for the finding that the respondent violated Rule 1.4(a)(5), and it is unclear whether the Nebraska court even found a violation of Rule 1.4(a)(5).

Also, the Administrator has not addressed, nor cited authority that addresses, whether Rule 1.4(a)(5) applies if Respondent sincerely believed that he was authorized to practice law under Brigham. Given that the rule requires a lawyer to consult with a client "when the lawyer knows that that the client expects assistance not permitted by" the rules or other law, it would seem that Respondent's sincere, albeit unreasonable, belief that he was authorized to practice law would preclude a finding that he violated Rule 1.4(a)(5).

Finally, in finding that Respondent had engaged in dishonesty, the Hearing Board did not find that Respondent actually knew, but only that he should have known, that he was not

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authorized to practice law while removed from the Master Roll. Because Respondent's subjective belief remained in question after hearing, we find that, even if Rule 1.4(a)(5) applied here, the Administrator fell short of proving that Respondent violated that rule.

SANCTION RECOMMENDATION

The Hearing Board recommended that Respondent be suspended for six months and until further order. Its sanction recommendation is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390 (1999). In making our own recommendation, we consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence, In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003), while keeping in mind that the purpose of discipline is not to punish the attorney but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the deterrent value of attorney discipline and "the need to impress upon others the significant repercussions of errors such as those committed by" Respondent. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906 (1994) (citing In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715 (1989)). Finally, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases, Timpone, 157 Ill. 2d at 197, while also considering the unique circumstances of each case. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).

Respondent argues that, based upon the authority cited by the Hearing Board in its report and recommendation, he should have received a three-month suspension. He contends that there is a "great disparity" between his case and the ones cited by the Hearing Board in which six-month suspensions were imposed, which violates Rule 753(e)(2). Specifically, he argues that, in In re Witt, 2010PR01165 (Hearing Bd., April 12, 2011), approved and confirmed, M.R. 24642

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(Sept. 28, 2011), the respondent failed to meet his 30-hour MCLE requirement, and that his failure to timely pay his dues does not rise to the same "protect the public" situation as an attorney who has failed to stay knowledgeable in the legal profession. He also argues that, in In re Williams, 95 CH 466 (Hearing Bd., Dec. 14, 1995), approved and confirmed, M.R. 12146 (March 26, 1996), the respondent was removed from the Master Roll for seven straight years, whereas he was never removed for longer than six months and always eventually paid his registration fee along with any late fees.

The Administrator, in turn, argues that, even with a finding that Respondent violated Rule 1.4(a)(5) in addition to the misconduct found by the Hearing Board, the Hearing Board's recommendation of a suspension of six months and until further order is appropriate and supported by precedent.

We agree with the Hearing Board that Witt and Williams are comparable to this matter and provide guidance as to an appropriate sanction. In Witt, the Court imposed a suspension of six months and until further order on an attorney who represented two clients while he was removed from Master Roll for failing to register and failing to comply with his MCLE requirements. He also did not participate at all in his disciplinary proceedings. Similarly, in Williams, 95 CH 466 (Hearing Bd., Dec. 14, 1995), the Court imposed a suspension of six months and until further order on an attorney who represented multiple clients over a seven-year period during which the attorney was removed from the Master Roll for failing to register. As in Witt, the attorney also did not participate at all in her disciplinary proceedings.

Like the Hearing Board, we believe this precedent supports imposing a six-month suspension in this matter, based upon Respondent's misconduct and taking into account the absence of mitigation and presence of significant aggravation - including Respondent's prior

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discipline, failure to fully participate in his disciplinary proceedings, and, most important, failure to acknowledge or express remorse for his misconduct.

Also like the Hearing Board, we believe that Respondent should be required to show that he is capable of adhering to the Rules of Professional Conduct before he is permitted to practice law again, and therefore recommend that his suspension continue until further order. However, our reasoning for recommending a UFO departs somewhat from the Hearing Board's.

The Hearing Board based its UFO recommendation on the fact that Respondent did not fully participate in his disciplinary proceedings. We agree that Respondent's inadequate but partial participation in his disciplinary proceedings is not acceptable and raises some concern about his ability to adhere to his professional obligations. But the most significant factor bearing upon our recommendation of a suspension until further order is that Respondent has utterly failed to recognize or acknowledge that he engaged in misconduct, or to express remorse for his actions.

Moreover, Respondent's arguments in his appellate briefs and during oral argument convince us that he does not understand or accept his ethical obligation to timely register with the ARDC as a precursor to practicing law, which necessitates a suspension until further order. See In re Kesinger, 2014PR00083 and 2015PR00042 (Review Bd., Nov. 29, 2016), at 17, approved and confirmed, M.R. 28530 (March 20, 2017) (imposing suspension until further order where "Respondent's arguments on appeal show that he still does not recognize or understand the nature and seriousness of his misconduct and has no remorse for it"). We are particularly disturbed that, when Respondent was asked at oral argument if he has learned from this disciplinary proceeding, he responded: "Yes - that, according to these two cases, it's no big

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deal to not pay your attorney fees and continue practicing law."5 But it is indeed a "big deal," because it is required by the rules of the Illinois Supreme Court and the ARDC.

Accordingly, we do not believe that Respondent, at this time, is able or willing to conform his behavior to the Rules of Professional Conduct. For this reason, we believe his suspension should continue until further order, so that he is required to demonstrate his fitness before he returns to the practice of law. See In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986) ("lack of any evidence that [respondent] is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court").

CONCLUSION

For the foregoing reasons, we affirm the Hearing Board's findings of misconduct and recommend that, for his misconduct, Respondent be suspended for six months and until further order.

Respectfully Submitted,

Jill W. Landsberg
Keith E. Roberts, Jr.
Benedict Schwarz, II

CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on May 10, 2018.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois

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_______________________

1 Illinois Supreme Court Rule 752(a) provides:

[T]he Administrator shall . . . [o]n his own motion, on the recommendation of an Inquiry Board, or at the instance of an aggrieved party, investigate allegations of violations of the Rules of Professional Conduct of attorneys licensed in Illinois and attorneys admitted in another United States jurisdiction who provide legal services in Illinois pursuant to Rule 5.5 of the Illinois Rules of Professional Conduct, and investigate allegations of the unauthorized practice of law, including investigations involving disbarred lawyers and other persons, entities, or associations that are not authorized to practice law by this Court.

2 Commission Rule 51 provides: "The Administrator may initiate an investigation on his own motion based upon information from any source."

3 The Hearing Board also addressed Respondent's assertion of attorney-client and Fifth Amendment privileges. It found that he did not validly assert these privileges and, in fact, was barred from testifying. It further noted that, even if he had asserted the privileges with respect to his own testimony, it could consider information provided by other witnesses or derived from public records, and that its findings were based on the evidence presented to it. (Hearing Bd. Report at 8, n.2).

4 Rule 1.4(a)(5) provides that "[a] lawyer shall . . . consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law." Ill. R. Prof. Cond. 1.4(a)(5) (2010) (emphasis added).

5 The two cases to which Respondent was referring are People v. Brigham, discussed above, and Applebaum v. Rush University Medical Center, 231 Ill. 2d 429, 899 N.E.2d 262 (2008), both of which he cited in his oral argument in support of his argument that he did not engage in the unauthorized practice of law.