Filed January 6, 2009
In re Patrick Clark McClurkin
Supreme Court No. M.R. 21325
Commission No. 06 RT 3006
Synopsis of Review Board Report and Recommendation
In 1988, Mr. McClurkin voluntarily moved to strike his name from the roll of attorneys, after he was convicted of federal criminal charges related to a conspiracy to defraud insurance companies. Mr. McClurkin filed a petition for reinstatement in 2002. He withdrew his petition after the Review Board recommended that it be denied because Mr. McClurkin's failure to make restitution. Mr. McClurkin filed a second petition for reinstatement in 2006, which is the subject of this proceeding.
The Hearing Board found that Mr. McClurkin was rehabilitated and recommended that his license be reinstated. A majority of the Review Board Panel disagreed and recommended that the petition for reinstatement be denied due to Mr. McClurkin's failure to make any attempt to identify and make restitution to the insurance companies that he defrauded. Although Mr. McClurkin opened a trust account and placed funds in it for the purpose of making restitution, he did not meet his burden of establishing restitution or the conclusive impossibility of restitution because he made no effort to distribute the funds to the victims of his fraudulent scheme.
The dissenting Panel Member concluded that there is conflicting case law on the issue of how a petitioner's restitution obligation may be satisfied. Further, Mr. McClurkin interpreted statements made by the Review Board in his first reinstatement proceeding to mean that making payments into a trust account would satisfy the restitution requirement. For these reasons, the dissenting Panel Member would accept the Hearing Board's recommendation to reinstate Mr. McClurkin's license or would remand the matter to the Hearing Board to allow Mr. McClurkin further opportunity to establish restitution or its conclusive impossibility.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
PATRICK CLARK McCLURKIN,
Supreme Court No. M.R. 21325
Commission No. 06 RT 3006
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the Administrator-Appellant's exceptions to the Hearing Board's recommendation that the Petitioner-Appellee, Patrick Clark McClurkin, be reinstated to the practice of law. Mr. McClurkin voluntarily moved to strike his name from the roll of attorneys in 1988, after he was convicted of criminal charges in the federal court.
This is Mr. McClurkin's second petition for reinstatement. He filed his first petition in March 2002. The Hearing Board recommended that his first petition be granted, with conditions. The Review Board disagreed, recommending that the petition be denied. Mr. McClurkin then moved to withdraw his petition, and the supreme court granted his motion. Mr. McClurkin filed a second petition for reinstatement in November 2006. The Hearing Board subsequently found that he was rehabilitated and recommended that his license be reinstated. The Administrator argues that the Hearing Board's finding that Mr. McClurkin met his burden of proving that he should be reinstated is against the manifest weight of the evidence.
Mr. McClurkin, who was licensed in Pennsylvania in 1973 and in Illinois in 1980, became involved in a scheme to defraud insurance companies by staging car accidents. His co-conspirators included two Allstate insurance agents, Perry Hutchinson and Forest Bailey; a
chiropractor, Aaron Long; Larry Lake, the driver of the accident vehicle; and numerous "victims," including Mr. McClurkin's ex-wife and brother. Mr. McClurkin participated in the scheme for approximately five years and received $40,000 as a result of his involvement.
After the FBI began investigating Mr. McClurkin and his co-conspirators, Mr. McClurkin advised the individuals who posed as accident victims to testify before the grand jury that their accidents were legitimate. Aaron Long suggested taking out a contract on Larry Lake's life so that he would not be able to testify before the grand jury. Mr. McClurkin refused to go along with the plan and told Long and Bailey that he would go to the authorities if they harmed Lake. Instead, they decided to send Lake out of the country. Mr. McClurkin contributed $1500 to send Lake to Belize.
In 1987, Mr. McClurkin pleaded guilty to charges of conspiracy and mail fraud. He was sentenced to eight years in the federal penitentiary. In 1988, he moved to voluntarily strike his name from the roll of attorneys. Mr. McClurkin was released from prison after sixteen months.
While in prison, Mr. McClurkin prepared and filed a habeas corpus petition asserting that the federal court lacked jurisdiction over him. The district court dismissed the petition and the appellate court affirmed the dismissal. McClurkin v. U.S., 922 F.2d 843 (7th Cir. 1991), 1991 WL 1921. Mr. McClurkin testified that he drafted the petition in an effort to keep his mind off of his surroundings and was not attempting to disclaim his guilt.
Also while in prison Mr. McClurkin executed affidavits for one of his co-defendants, Bailey, in support of Bailey's post-conviction efforts. Mr. McClurkin testified that everything he said in the affidavits was true.
Mr. McClurkin began working as a salesman for Galaxie Lumber in 1994. His supervisor, David Anthony Wrenn, testified that Mr. McClurkin was one of the best salesmen he ever had. Mr. McClurkin was trusted with cash payments and was a loyal employee. Although Mr. McClurkin did not indicate on his application that he had a criminal record and had been disbarred, he discussed those matters with the owner of Galaxie Lumber. On his application, he stated that he had been employed as a mortgage broker during the time he was in prison. Mr. McClurkin testified that he made a mistake when he wrote that statement.
In 1994, following an altercation with his now ex-wife, Mr. McClurkin was charged with battery and pleaded guilty to reckless conduct. He was placed on supervision for one year and ordered to complete a drug and alcohol evaluation. Mr. McClurkin testified that he was innocent of the charges. He decided to plead guilty because both the prosecutor and the judge were women, and he did not think he could prevail under those circumstances.
As a condition of recommending reinstatement in Mr. McClurkin's first petition, the Hearing Board recommended that he donate 100 hours of his time to a group providing services for battered women. In re McClurkin, No. 02 RT 3002 (Hearing Board, July 21, 2003). Mr. McClurkin did so, volunteering at Southwest Women Working Together, a shelter for victims of domestic violence. Jetaun Wright, the shelter's former Associate Director for Volunteer Resources, testified that Mr. McClurkin began volunteering in August 2005 and ended in December 2006. He helped in the Family and Children Services program, talking with teenage boys who lived in the shelter.
Mr. McClurkin presented character evidence from several judges and attorneys. Judge Orville Hambright, who has known Mr. McClurkin since high school, testified that he has a good reputation for truth and honesty. Walter Jones, Jr., Mr. McClurkin's criminal attorney,
testified that his misconduct was an aberration and he was remorseful. Jones further testified that restitution was not an issue in the criminal case, and he no longer has any files that would provide information pertaining to restitution.
Attorney James Hardemon testified that he has known Mr. McClurkin since elementary school and described him as very reliable. He believes that Mr. McClurkin's crimes were out of character and that he has worked very hard since his release from prison. He would be willing to allow Mr. McClurkin to work in his law office and to monitor him if he regained his license. Judges John Steele and Michael Stuttley testified that Mr. McClurkin currently has a very good reputation in the community.
Mr. McClurkin testified that he understands his responsibility to make restitution, but has not done so because neither he nor his criminal attorney possesses the necessary information. Mr. McClurkin set up an escrow account at Northern Trust Bank and deposited $40,000 with which to make restitution. The funds were an advance on his inheritance from his father, Clark McClurkin. Mr. McClurkin stated that he is willing to follow whatever direction he receives from the supreme court as to how he should disburse the funds.
Mr. McClurkin further testified that if he returned to practice he would not give up his job at Galaxie Lumber. He would work part-time with Hardemon on bankruptcy matters.
The Administrator presented evidence that some of Mr. McClurkin's tax returns contain misinformation. Specifically, the returns contain incorrect addresses for Mr. McClurkin's residence and an incorrect social security number for his daughter. Also, Mr. McClurkin took an exemption for his daughter as a child who lived with him even though she was an adult who lived in Virginia. Kerry Van Isom, an accountant, testified that he has prepared Mr. McClurkin's tax returns for approximately 12 years. He listed Mr. McClurkin's
adult daughter as a dependent because McClurkin paid her household expenses. Van Isom testified that the incorrect addresses were typographical errors.
The Hearing Board found that Mr. McClurkin clearly and convincingly established that he is rehabilitated and of good character and has an adequate knowledge of the law. With respect to restitution, the Hearing Board found that Mr. McClurkin established his readiness to make restitution and that his failure to make actual payments should not preclude reinstatement. The Hearing Board recommended that he be reinstated under the conditions that (1) he pays $40,000 to the National Insurance Crime Bureau or a similar organization approved by the Administrator and (2) attorney James Hardemon serves as his mentor for two years.
On review, the Administrator contends that Mr. McClurkin did not meet his burden of proving his rehabilitation, good character, and current knowledge of the law and asks this Board to recommend that his petition for reinstatement be denied. Mr. McClurkin asserts that the Hearing Board's recommendation was proper and asks us to affirm it.
A disbarred attorney may petition for reinstatement three years after the date of an order allowing disbarment on consent. Supreme Court Rule 767(a). A petitioner who withdraws a petition for reinstatement may not file another petition until one year after the order allowing the withdrawal of the petition. Supreme Court Rule 767(a). The supreme court entered an order allowing Mr. McClurkin to withdraw his first petition for reinstatement on March 29, 2005. He filed his second petition for reinstatement on November 27, 2006.
A petitioner bears the burden of proving by clear and convincing evidence that he should be reinstated. In re Martinez-Fraticelli, 221 Ill.2d 255, 270, 850 N.E.2d 155 (2006). "The focus is on the petitioner's rehabilitation and character, with rehabilitation being the most important consideration." Martinez-Fraticelli, 221 Ill.2d at 270, 850 N.E.2d 155. A petitioner is
rehabilitated when he returns to a beneficial, constructive, and trustworthy role. Martinez-Fraticelli, 221 Ill.2d at 270, 850 N.E.2d 155.
Supreme Court Rule 767(f) sets forth six factors to consider when determining whether a petitioner is sufficiently rehabilitated and possesses the present good character and current knowledge of the law required for reinstatement:
(1) the nature of the misconduct for which the petitioner was disciplined;
(2) the maturity and experience of the petitioner at the time discipline was imposed;
(3) whether the petitioner recognizes the nature and seriousness of the misconduct;
(4) when applicable, whether petitioner has made restitution;
(5) the petitioner's conduct since discipline was imposed; and
(6) the petitioner's candor and forthrightness in presenting evidence in support of the petition.
There is no presumption in favor of reinstatement. In re Richman, 191 Ill.2d 238, 247-48, 730 N.E.2d 45 (2000). The Hearing Board's factual findings in a reinstatement proceeding will not be reversed unless they are against the manifest weight of the evidence, but its recommendation as to whether a petitioner should be reinstated is advisory. Martinez-Fraticelli, 221 Ill.2d at 271-72, 850 N.E.2d 155. We conclude that Mr. McClurkin did not meet his burden of proving that he should be reinstated, particularly on the issue of restitution.
NATURE OF THE MISCONDUCT
Mr. McClurkin engaged in egregious misconduct for the purpose of his own financial gain. The Hearing Board found that, while serious, Mr. McClurkin's misconduct does not preclude his reinstatement. The Administrator does not contend that the nature of the misconduct precludes reinstatement, but that it is a factor that weighs against Mr. McClurkin.
The Review Board took this position in Mr. McClurkin's first petition for reinstatement. In re McClurkin, No. 02 RT 3002, Review Board Report and Recommendation at 7 (Jan. 24, 2005).
Mr. McClurkin's misconduct is similar in nature to misconduct that has weighed against other attorneys in reinstatement proceedings. The petitioner in Richman was convicted of eight counts of mail fraud and two counts of wire fraud in connection with bribing an insurance claims adjuster. The supreme court stated that Richman's misconduct "struck at the core of our legal system and was antithetical to our society's most basic principles." Richman, 191 Ill.2d at 245, 730 N.E.2d 45. Richman also admitted to additional briberies of insurance company employees and cocaine use, both of which reinforced the supreme court's unfavorable assessment of his history of misconduct.
The petitioner in In re Schechet pleaded guilty to mail fraud charges after he conspired with an insurance company claims manager to submit fraudulent claims and share in the proceeds with the claims manager and others. In affirming the Review Board's recommendation that Schechet's petition for reinstatement be denied, the court stated that his four-year scheme constituted "grave and calculated crimes." In re Schechet, 105 Ill.2d 516, 522, 475 N.E.2d 828 (1985)
The petitioner in In re Juron, No. 01 RT 3002 (Hearing Board, Dec. 30, 2002), approved and confirmed, No. M.R.17655 (March 19, 2003), was convicted of conspiring to defraud a savings and loan, defrauding a savings and loan, and mail fraud. Noting that Juron committed these crimes for his personal benefit, the Hearing Board found that his misconduct "was not a simple mistake, but instead consisted of calculated and deliberate acts intended to obtain money based on fraud. This conduct was serious and Ďan important consideration which
cannot be minimized by subsequent exemplary conduct.'" Juron, Hearing Board Report at 19, quoting Richman, 191 Ill. 2d 238, 730 N.E.2d 45.
Mr. McClurkin's insurance fraud scheme was similarly calculated, motivated by greed and antithetical to the principles of our legal system. Consequently, the nature of his misconduct weighs against him but does not, by itself, preclude reinstatement.
MATURITY AND EXPERIENCE
Mr. McClurkin had been an attorney for seven years and was in his mid-thirties at the time he became involved in the fraudulent scheme. As the Hearing Board noted, his misconduct was motivated by greed and cannot be attributed to or mitigated by his age or level of experience. Consequently, this factor also weighs against him. See also McClurkin, No. 02 RT 3002, Review Board Report and Recommendation at 7 (The fact that Mr. McClurkin was a mature individual and an experienced attorney at the time of his misconduct weighs against him).
RECOGNITION OF THE NATURE AND SERIOUSNESS OF MISCONDUCT
The Hearing Board found that Mr. McClurkin is sincerely repentant and recognizes the nature and seriousness of his misconduct. The Administrator argues that Mr. McClurkin's conduct since his disbarment and his testimony at the hearing below do not clearly and convincingly establish that he appreciates the wrongfulness of his misconduct.
After listening to Mr. McClurkin's testimony and observing his demeanor, the Hearing Board concluded that he accepted responsibility for his misconduct and acknowledged that it was wrong. The Hearing Board was in the best position to assess Mr. McClurkin's credibility, and we defer to its findings as to his candor, forthrightness and sincerity. In re Berkley, 96 Ill. 2d 404, 411, 451 N.E.2d 848 (1983). The Administrator has provided no persuasive reason to disturb the finding that Mr. McClurkin clearly acknowledged and expressed
remorse for his wrongdoing. We will address separately his conduct since his disbarment and how it impacts the issue of rehabilitation.
Restitution is a condition of reinstatement, "except in those rare instances where repayment to the victims is conclusively established to be an impossibility." Berkley, 96 Ill.2d at 412, 451 N.E.2d 848. In such rare instances, the petitioner has the burden of presenting conclusive proof that restitution is impossible. Berkley, 96 Ill.2d at 412-13, 451 N.E.2d 848.
At no time since his removal from the roll of attorneys has Mr. McClurkin attempted to contact any of the insurance companies that he defrauded to try to make restitution. In Mr. McClurkin's first petition for reinstatement, the Hearing Board found that restitution was possible because he knew how much he owed and which insurance companies were involved. McClurkin, No. 02 RT 3002, Hearing Board Report at 13. The Hearing Board listed the sixteen insurance companies to which Mr. McClurkin was to make restitution.
The Review Board subsequently found that the insurance companies were readily locatable, and that Mr. McClurkin's failure to make any meaningful effort toward restitution weighed heavily against reinstatement. McClurkin, No. 02 RT 3002, Review Board Report at 9. After Mr. McClurkin withdrew his first petition for reinstatement, he created an escrow account for the purpose of making restitution in which he deposited $40,000.
In his current petition for reinstatement, Mr. McClurkin testified that the funds were an advance on his inheritance from his father. The escrow account is in Mr. McClurkin's and his father's names. Mr. McClurkin testified that his father's name is on the account so that, if anything were to happen to Mr. McClurkin, the money would revert to his father Mr. McClurkin has yet to disburse any of the funds.
Mr. McClurkin further testified that he has not tried to contact any insurance company because he does not know which insurance companies were involved, the names of the claimants, the claim numbers, or the dates of the claims. The Administrator submitted as exhibits the indictment against Mr. McClurkin in his criminal case and his plea agreement statement, which set forth the names and addresses of the insurance companies involved, the names of the false claimants, the dates of some of the purported accidents, the check numbers of settlement drafts, and the names of some of the contact persons at the insurance companies. Those documents were also admitted as exhibits in the first reinstatement proceeding.
The Hearing Board found that Mr. McClurkin established his readiness to make restitution. It further found that determining the amounts he owed to specific insurance companies was "if not a conclusive impossibility, at least a constructive one." McClurkin, No. 06 RT 3006, Hearing Board Report at 23.
We disagree with the Hearing Board's findings pertaining to restitution for the following reasons. First and foremost, Mr. McClurkin did not meet his burden of clearly and convincingly proving that restitution was a conclusive impossibility. The only evidence that he presented on this issue was his testimony that (1) he does not have what he believes to be the necessary information about the false insurance claims because his wife threw away his files, and (2) he asked his criminal attorney, Jones, for the information but Jones did not have it.
Berkley is instructive on this issue. Berkley "bought" personal injury cases from police officers, submitted inflated medical bills to insurance companies and paid kickbacks to insurance adjusters. He was convicted of suborning perjured testimony from three police officers and pleaded guilty to conspiracy and mail fraud. Although Berkley lived an exemplary life after his convictions, he never made restitution to the insurance companies he defrauded or to
his clients who sometimes absorbed the kickback and chaser fees. Berkley testified that he did not have the information necessary to make restitution because his files had been stored in a building that was demolished and, even if he had the files, he could not have determined the amounts he owed and to whom. After the Hearing Board recommended that Berkley's petition be denied on the sole ground that he failed to make restitution, Berkley made $5000 donations to the client reimbursement funds of both the Illinois State Bar Association and the Chicago Bar Association in lieu of direct restitution.
The supreme court remanded the matter to give Berkley an opportunity to provide proof of restitution or the impossibility of restitution. The court noted as follows:
There is here no showing, much less a conclusive one, of impossibility. Petitioner apparently permitted his files to be stored in a building which was subsequently demolished. There is nothing in this record to indicate he made any effort to preserve the names of the clients, individuals or companies from whom money was corruptly obtained or withheld. He has made no inquiry through the defrauded insurers as to the availability of their records. Nor has the possibility that the files of the United States Attorney and United States Postal Inspection Service might provide information been explored. Instead of first exhausting these and other possible means of identifying those to whom money was owed, petitioner made what were little more than token payments to the bar association client security funds, considering that the fraudulently obtained funds may have approximated $110,000 per year.
Berkley, 96 Ill.2d at 413, 451 N.E.2d 848.
Berkley makes clear that a petitioner who makes no effort to preserve the information necessary to make restitution or to seek that information from other sources does not establish conclusive impossibility. Like Berkley, Mr. McClurkin did not present any evidence of efforts to preserve the information required to pay back the insurance companies he defrauded. Nor has he ever tried to contact an insurance company or seek records from the United States Attorney or the ARDC. Consequently, his testimony that he has no way to obtain the
information necessary to determine how much he owed and to whom is purely speculative and does not provide a basis for establishing that restitution is a conclusive impossibility. For these reasons, we must conclude that Mr. McClurkin did not come close to meeting his burden of proof, and the Hearing Board's finding to the contrary was against the manifest weight of the evidence. Unlike Berkley, remand is not appropriate in this matter. The law is clear regarding restitution and conclusive impossibility, and Mr. McClurkin has had ample opportunity to present evidence on these issues.
Both the Hearing Board and Mr. McClurkin cite In re Silvern, 92 Ill.2d 188, 441 N.E.2d 64 (1982), as support for the proposition that an attorney may be reinstated in the absence of restitution to his specific victims. The attorney in Silvern paid restitution to the Legal Assistance Foundation of Chicago because he could not remember which insurance companies he defrauded and "gave up on" trying to identify them. Silvern, 92 Ill. 2d at 195, 441 N.E.2d 64. The supreme court held that this did not preclude his reinstatement.
We note that Silvern appears to take a somewhat different approach from Berkely. Because Berkley was decided after Silvern, and because it unequivocally requires a petitioner to demonstrate either restitution or the conclusive impossibility of restitution, we conclude that Berkley, rather than Silvern, is controlling.
Moreover, the passage of time and Mr. McClurkin's inaction should not excuse him from trying to make restitution to the parties he harmed. The purposes of restitution are to compensate the victims' losses that resulted from the misconduct and to remove from the attorney any improper benefit he received as a result of the misconduct. In re Fleischman, 135 Ill.2d 488, 498, 553 N.E.2d 352 (1990). Those purposes are not served when an attorney, particularly one who gained financially from his own fraudulent activities, is relieved of his
obligation to make actual restitution without making any effort whatsoever. For this reason, payment of the restitution funds to a different entity should not be a substitute for compensating the actual victims' losses except in the rare instance of conclusive impossibility, which was not proven in this case.
We are also troubled that the record demonstrates a lack of appreciation on Mr. McClurkin's part of the need to make restitution to the parties whose money he wrongfully took. Mr. McClurkin testified that restitution only "became an issue" when the Hearing Board issued its Report and Recommendation on his first petition for reinstatement, in 2003. Thus, for the first fifteen years after his disbarment, it did not occur to him that he should be making restitution. Even after the Hearing Board instructed him to make restitution to the insurance carriers and the Review Board recommended denying his first petition largely because of his failure to do so, Mr. McClurkin made no effort to contact the carriers, much less make a payment to them. The fact that Mr. McClurkin is unwilling to take on the responsibility of making restitution to the appropriate parties indicates that he does not fully appreciate the need for, or purpose of, restitution and, therefore, he is not fully rehabilitated.
Additionally, the evidence presented about the escrow account indicates that Mr. McClurkin has not relinquished control over the funds that he fraudulently obtained. The escrow account is under his name and his father's name. By Mr. McClurkin's admission, if something were to happen to him, the funds would revert to his father and, presumably, would not be used for restitution. Nothing in the record indicates that Mr. McClurkin has taken the necessary steps to insure that the funds in the escrow account may be used only for restitution.
We also disagree with Mr. McClurkin's interpretation of the Review Board's statements in the first reinstatement proceeding. The Review Board stated that, "there is no
evidence that McClurkin made any actual effort to make any payments, even on an installment basis or into a trust fund, toward the total amount." McClurkin, No. 02 RT 3002, Review Board Report and Recommendation at 9. We take this to mean that creation of a trust account would indicate some actual effort toward making restitution, not that doing so, by itself, would necessarily satisfy Mr. McClurkin's restitution obligation. On the contrary, the Review Board noted both Mr. McClurkin's failure to make an effort to determine how much he owed and to whom, as well as his failure to set aside any money for restitution. McClurkin, No. 02 RT 3002, Review Board Report and Recommendation at 9. While he has now set aside funds for restitution, he has not done so in a manner that insures the funds will be used only for restitution, nor has he made any effort whatsoever to contact the victims of his fraudulent scheme. Consequently, considering the entirety of the Review Board's Report and Recommendation in the first reinstatement proceeding, we cannot say that Mr. McClurkin satisfied its concerns pertaining to restitution.
For all of the foregoing reasons, we conclude that the record does not indicate a good faith effort by Mr. McClurkin to repay the victims of his fraudulent scheme. This factor weighs heavily against reinstatement.
CONDUCT SINCE DISCIPLINE WAS IMPOSED
The Administrator contends that Mr. McClurkin's conduct since discipline was imposed has been "problematic." The Administrator points to his attempt to have his criminal conviction vacated by filing a habeas corpus petition while in prison; his assistance to a co-defendant, Bailey, in the form of signing affidavits that Bailey used in his post-conviction proceedings; his reckless conduct conviction in 1998; his failure to report his fraud conviction to the appropriate authorities and to comply with other rules pertaining to attorney registration in
Pennsylvania; and misstatements on his tax returns and employment application. The Hearing Board determined that these incidents do not reflect negatively on Mr. McClurkin's rehabilitation, and that his conduct since disbarment has been commendable.
The Hearing Board further noted that the Administrator did not raise any of these issues in Mr. McClurkin's first petition for reinstatement, except for his conviction for reckless conduct. The Hearing Board characterized the new assertions as "inconsequential in nature, and nothing more than an attempt to magnify and compound minor missteps in order to paint a picture of Petitioner that is unjustifiably condemning." McClurkin, 06 RT 3006, Hearing Board Report at 26. With respect to the reckless conduct conviction, the Hearing Board found that it does not preclude reinstatement because Mr. McClurkin completed his community service obligation, did not have any prior or subsequent domestic abuse incidents, and his account of the incident was not contradicted.
Mr. McClurkin presented evidence that he has taken care of his family and made a new career for himself at Galaxie Lumber, where he has excelled and proven himself to be dedicated and trustworthy. He provided explanations for the incidents raised by the Administrator.
The Administrator has not presented any persuasive reason to disturb the Hearing Board's findings regarding Mr. McClurkin's conduct since discipline was imposed. The Hearing Board considered all of the evidence and resolved the issue in Mr. McClurkin's favor. The Administrator's contentions amount to little more than disagreement with the Hearing Board. This is not sufficient to establish that it is clearly evident that Mr. McClurkin's conduct since discipline was imposed weighs against reinstatement. See In re Winthrop, 219 Ill.2d 526, 542,
848 N.E.2d 961 (2006), a finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident.
CANDOR AND FORTHRIGHTNESS IN PRESENTING
EVIDENCE IN SUPPORT OF THE PETITION
The Hearing Board found that Mr. McClurkin was candid and forthright in presenting evidence in support of his petition for reinstatement. The Administrator argues that he did not act honestly on several occasions since his disbarment. We believe the focus of the Administrator's argument on this issue is misplaced.
This factor addresses the information provided in the petition for reinstatement itself and the evidence the petitioner submits during the hearing, including his own testimony. For example, in Juron, a case cited by the Administrator, the Hearing Board found that Juron was not candid and forthright because he did not provide complete and accurate information in his petition for reinstatement and some of his testimony during the hearing on his petition was not credible. Juron, No. 01 RT 3002, Hearing Board Report at 29-30. While the Hearing Board considered other dishonest conduct that Juron had engaged in since his disbarment, it did so in addressing his conduct since discipline was imposed, as the Hearing Board did in this case.
Also, in In re Polito, contrary to the Administrator's description of the case, the supreme court found that Polito was candid and forthright in presenting the evidence in support of his petition. In re Polito, 132 Ill.2d 294, 303-04, 547 N.E.2d 465 (1989). Similar to Juron, the court found that Polito had acted dishonestly in other areas by providing false information to his employer on several occasions, but the court considered that behavior as part of his conduct since discipline was imposed. Polito, 132 Ill.2d at 303, 547 N.E.2d 465.
Thus, in considering Mr. McClurkin's candor and forthrightness in presenting evidence in support of his petition, our attention is focused on his testimony and the other
evidence he presented at the hearing below. The Administrator does not point to any omission, misinformation, or untruthful testimony by Mr. McClurkin in this regard. Moreover, the Hearing Board addressed the conduct that the Administrator contends was less than candid (omissions on employment application and misinformation on tax returns) when considering Mr. McClurkin's conduct since discipline was imposed and found those incidents to be inconsequential. For all of these reasons, we cannot say that the Hearing Board's finding that Mr. McClurkin was candid and forthright was against the manifest weight of the evidence.
CURRENT KNOWLEDGE OF THE LAW
In its Report and Recommendation on Mr. McClurkin's first petition for reinstatement, the Review Board noted that he had made only minimal efforts to maintain his knowledge of the law. Since then, he has completed six day-long seminars presented by the Illinois Institute for Continuing Legal Education. He also completed the Professionalism Seminar of the Illinois Professional Responsibility Institute on July 21, 2006. Mr. McClurkin testified that he reviews the Chicago Daily Law Bulletin and has conversations with lawyers and judges about certain changes in the law or procedure. The Hearing Board found that he established a current knowledge of the law, and that his efforts were equivalent to those of other attorneys who were reinstated.
The Administrator's criticisms that the seminars Mr. McClurkin attended "were of a general nature," and that there was no evidence as to how they would be relevant to his practice if he were reinstated are not persuasive. In Martinez-Fraticelli, the petitioner testified that he reviewed advance sheets, the rules of evidence, the Code of Civil Procedure, and the supreme court rules and also attended seminars on real estate tax and legal ethics. The supreme court granted his petition for reinstatement. Martinez-Fraticelli, 221 Ill.2d at 269, 282, 850
N.E.2d 166 (2006). The evidence showed that Mr. McClurkin's efforts are at least equivalent to those of Martinez-Fraticelli. We conclude that the finding that Mr. McClurkin demonstrated an adequate knowledge of the law was supported by the manifest weight of the evidence.
While we commend Mr. McClurkin for the efforts he has made, the factors that weigh in his favor are not sufficient to justify reinstatement in light of the extremely serious nature of his misconduct and his failure to satisfy his obligation to make restitution or to conclusively show that restitution is impossible. We do not believe that we are placing undue importance upon the factor of restitution, given the supreme court's holding that it is a condition of reinstatement except in rare instances. See Berkley, 96 Ill.2d at 412, 451 N.E.2d 848. The evidence that Mr. McClurkin presented to the Hearing Board did not clearly and convincingly establish that this is one of those rare instances.
Accordingly, we recommend that the petition for reinstatement of Petitioner-Appellee, Patrick Clark McClurkin, be denied.
Date Entered: 06 January 2009
W. Rapp, Jr.
Lefstein, Stuart R., Panel Member, dissenting:
I respectfully dissent. While I agree with much of the analysis in the majority opinion, for three reasons I cannot concur with the conclusion that our recommendation should be an outright denial of reinstatement.
First, the majority has concluded that In re Berkley, 96 Ill.2d 404, 451 N.E.2d 848 (1983) necessarily controls the result in this case and that earlier supreme court precedent should be ignored. The Hearing Board and Mr. McClurkin relied upon In re Silvern, 92 Ill.2d 188, 193-195, 441 N.E.2d 64, 67-68 (1982), decided a year prior to Berkley. That case, like the subject one, involved a petitioner who paid funds into a trust account instead of paying directly to defrauded insurance companies. The following language from that case indicates a much different approach from that suggested by Berkley:
He placed $677, the amount of the fees involved in the cases for which he was convicted, in trust with his attorney for payment to the insurance companies, if they could be identified, or as a charitable donation. The money ultimately was given to the Legal Assistance Foundation of Chicago.
* * *
The Administrator is also dissatisfied with the petitioner's attempts at restitution, pointing out the petitioner made no effort to return the money taken from the insurance companies until he applied for reinstatement. The Administrator contends that the petitioner could have discovered the identity of the true victims of his crimes if he had tried harder. Although an earlier and full restitution to the true victims would have strengthened the petitioner's case, we do not feel that this should be used to defeat Silvern's petition. (See In re Thomas (1979, 76 Ill.2d 185, 191 (restitution "not the controlling consideration").) The delay was in part caused by the petitioner's inability to remember which insurance companies were involved. Furthermore, we are not inclined to believe that the petitioner purposely slighted these true victims in favor of the Legal Assistance Foundation. Instead, it appears that he and his attorneys gave up on trying to identify them.
In terms, Berkley did not overrule or disavow Silvern on the restitution issue. Instead, it cited the Silvern opinion approvingly on a different issue. Berkley, 96 Ill.2d 404 at 410. As a result, and until the supreme court says otherwise, it is not clear that Silvern is no longer the law in given circumstances or that the Hearing Board was wrong in applying Silvern to the facts of this case.
Second, and regardless of the position the supreme court ultimately takes on the restitution issue, I have concluded that it would be a deprivation of fundamental fairness to deny Mr. McClurkin's petition outright based on a lack of restitution. My reasons for this conclusion are that the January 2005 Review Board Report and Recommendation (Commission No. 02 RT 3002), which recommended denial of an earlier petition for reinstatement, suggested that Silvern was still good law and that paying into a trust fund might be an option for Mr. McClurkin. At page 9 of that Report and Recommendation the following appears:
Even if the amounts owed to each carrier could not be precisely determined, there is no evidence that McClurkin made any meaningful effort to try to do so. Similarly, there is no evidence that McClurkin made any actual effort to make any payments, even on an installment basis or into a trust fund, toward the total amount. Compare Silvern, 92 Ill.2d 188, 441 N.E.2d 64, 65 Ill. Dec. 272. (Emphasis added.)
Mr. McClurkin seems to have relied upon the Review Board's suggestion because in his brief (p. 11) before this panel, his attorney wrote:
As noted favorably by the Hearing Board, approximately seven months after the Review Board's reference to setting aside money in a trust fund, and more than a year in advance of the filing of his current Petition, Petitioner deposited $40,000 into a trust account earmarked for repayment.
Mr. McClurkin and his attorney, having relied upon Silvern and having taken action seemingly blessed by the Review Board, should not now be told that their possible misinterpretation of what the prior panel had written operates as a bar to reinstatement.
Finally, given the foregoing circumstances, Mr. McClurkin ought to receive, at the least, similar treatment that was awarded to Berkley. In Berkley, the petition for reinstatement was not denied outright, but remanded to the Hearing Board. Berkley was given a "reasonable time as he may request, to produce proof of restitution or conclusive proof of its impossibility." Berkley, 96 Ill.2d 404 at 414.
In my judgment, and depending on what the supreme court decides on the viability of Silvern and its application to this case, the Hearing Board's recommendation should either be accepted or, alternatively, the matter should be remanded to the Hearing Board to give Mr. McClurkin a further opportunity to make restitution to the insurance companies or to conclusively prove its impossibility.
Date Entered: 06 January 2009
Stuart R. Lefstein