Attorney Discipline and Criminal Conduct: A Supreme Court Rule 761 Primer
By: Albert S. Krawczyk, Senior Counsel, Litigation Division, Illinois ARDC
February 22, 2021
Illinois Supreme Court Rule 761 and well-settled caselaw set out a number of principles relating to the disciplinary treatment of criminal conduct that every Illinois lawyer facing criminal charges, and the attorneys who represent them, need to know.
Failure to report criminal conduct may be grounds for discipline.
Illinois lawyers who are convicted of a felony or misdemeanor have a duty to notify the Administrator of the conviction pursuant to Rule 761. The rule requires lawyers to report the conviction in writing within 30 days of the entry of the judgment of conviction whether or not the conviction results from a plea of guilty or of nolo contendere or from a judgment after trial and regardless of whether the conviction has been appealed or a post-conviction petition has been filed.
Simply being unaware of the reporting requirement is not a valid reason for failing to comply with the rule. In fact, failing to report a conviction may result in disciplinary charges against the lawyer. For example, in In re Pennock, M.R. 21442, 06 SH 06 (March 19, 2007), the Hearing Board, citing In re Gerard, 132 Ill. 2d 507, 537-538 (1989), found that the Court had made it clear that ignorance of ethical requirements was no excuse and recommended that the respondent be disciplined, in part, for not reporting her convictions to the Administrator.
It is the criminal conduct that warrants discipline and not the technicalities of the conviction.
In In re Patt, 81 Ill. 2d 447 (1980), the Court found that an attorney could still be disciplined even though his embezzlement conviction in Nevada was later vacated and the charge dismissed pursuant to a statutory provision pertaining to probation. The Court found that the dismissal did not alter the fact that there had been an adjudication which determined that the respondent committed an act of embezzlement. The Court stated that it was this conduct which gave rise to the need for discipline, the purpose of which was to safeguard the public and maintain the integrity of the profession. Patt, 81 Ill. 2d at 452.
Likewise, in In re Rolley, 121 Ill. 2d 222 (1988), the Court found that a successful completion of a term of court supervision would not bar disciplinary action. Court supervision is a sentencing option available for the majority of misdemeanor crimes committed in Illinois. No conviction enters during the period of supervision and upon its successful completion, the case is finalized as a dismissal.
In Rolley, the respondent pleaded guilty to the charge of wilful failure to file an Illinois income tax return, and, after successfully completing one year of court supervision, the criminal charges against him were dismissed pursuant to Illinois law. The respondent claimed that the termination of the criminal charge by an order of discharge and dismissal at the successful conclusion of a period of supervision was neither a judgment of conviction nor the basis for the imposition of discipline. The Court found that it was not the conviction of a crime which justifies discipline, but the commission of the act, and that the “attorney is being disciplined not because of his conviction but because of the conduct.” Rolley, 121 Ill. 2d at 233. A subsequent pardon for a crime does not necessarily preclude discipline by the Court. Even the formal acquittal of a criminal charge does not automatically bar a disciplinary proceeding based on the attorney's conduct upon which the criminal charge was founded. Rolley, 121 Ill. 2d at 233.
Crimes involving fraud or moral turpitude may warrant a lawyer’s immediate suspension.
If an attorney is convicted of a crime involving fraud or moral turpitude, the Administrator is required to file a petition with the Court seeking that the respondent be suspended from the practice of law until further order of the Court. A certified copy of the judgment of conviction is attached to the petition and under Rule 761, is prima facie evidence of the fact that the attorney was convicted of the crime charged. After consideration of the petition and the answer to the rule to show cause, the Court may enter an order, effective immediately, suspending the attorney from the practice of law until the further order of the Court. In practice, the order is entered on an interim basis until disciplinary proceedings are completed.
Unless the attorney requests that disciplinary proceedings go forward while an appeal might be pending, Hearing Board proceedings are stayed until any appeal of the conviction has been concluded. A hearing is then conducted before the Hearing Board to determine whether the crime warrants discipline, and, if so, the extent thereof. Typically, disciplinary proceedings are not stayed pending the outcome of any petition for habeas corpus. A habeas corpus proceeding is a civil action against the state agent who holds a defendant in custody. The proceeding has been viewed as an extraordinary remedy and not generally considered a part of the appellate process but a collateral attack on the final judgment. See, e.g., Bousley v. U.S., 118 S.Ct. 1604, 140 L.Ed. 2d 828 (U.S. 1998).
Regardless of whether the conduct involves moral turpitude, criminal conduct may be subject to discipline. In re Scarnavack, 108 Ill. 2d 456 (1985). When an attorney is convicted of a crime that does not involve fraud or moral turpitude, Rule 761 requires the Administrator to refer the matter to the Inquiry Board before a complaint is filed and then heard by the Hearing Board.
While criminal conduct involving “fraud” might be obvious, the Court has broadly defined “moral turpitude” as “anything which an attorney does knowingly and which is contrary to justice, honesty, and good morals.” In re Alschuler, 388 Ill. 492, 503 (1944). The Court has deemed a number of criminal offenses to be crimes involving fraud or moral turpitude. The Court has imposed an interim suspension for such offenses as forgery and subordination of perjury (In re Deer, M.R. 29779, 2018PR00074); drug trafficking (In re Huff, M.R. 26337, 2011PR00082); violations of the Trading with the Enemy Act and making false statements in a passport application (In re Connors, M.R. 25584, 04 CH 122); and offenses involving home invasion and the brutal attack on persons taken hostage (In re Schmuhl, M.R. 30378, 2017PR00020).
Proof of conviction is conclusive proof of the criminal conduct.
In any hearing conducted pursuant to Rule 761, proof of conviction is conclusive of the attorney’s guilt. Evidence beyond the mere fact of conviction can be relevant to determining the appropriate sanction for the attorney’s criminal conduct, but such evidence cannot be used to challenge the legitimacy of the lawyer’s conviction or guilt of the underlying charges.
In In re Crane, 23 Ill.2d 398, 401 (1961), the Court stated that at hearing, "a consideration of the actual conduct of the respondent is not only proper, but may be indispensable, to an informed appraisal of the appropriate disciplinary action." The attorney may offer evidence of the circumstances surrounding his conviction and present evidence of mitigating circumstances; however, the attorney may not impeach the factual allegations of the charges on which he was convicted, "go behind the record of conviction," In re Ciardelli, 118 Ill. 2d 233, 239-40 (1987), or "relitigate issues of guilt,” In re Williams, 111 Ill. 2d 105, 113 (1986).
In In re Scott, 98 Ill. 2d 9, 16 (1983), where the respondent was convicted of filing a false federal income tax return, the Court stated that the attorney could not during his disciplinary proceeding challenge the factual bases of those convictions re-analyzing the evidence in the criminal case. As the Court had stated in the Crane case, “[t]o consider evidence of this nature would open up a highly speculative area and would serve no useful purpose in a disciplinary proceeding." Scott, 98 Ill. 2d at 17-18.
Likewise, in Williams, above, the Court refused to consider a transcript submitted by the respondent at his disciplinary hearing of his co-defendant’s prior trial testimony. The transcript was apparently offered to show that the respondent was innocent of the fraudulent scheme to defraud an insurance company of which he was charged and convicted by a jury. The transcript was rejected not only because it was hearsay but also because it related to the attorney’s guilt. Williams, 98 Ill. 2d at 14-15.
In sum, a true appreciation of the significance of Supreme Court Rule 761 requires an understanding of the disciplinary treatment of criminal conduct beyond the four corners of the rule itself.
 A plea of nolo contendere, from the Latin phrase for “I do not wish to contend,” has been also referred to as a plea of no contest. While the Illinois Code of Criminal Procedure makes no reference to no contest pleas (See, 725 ILCS 5/113-4), the plea, in jurisdictions where recognized, permits a criminal defendant to admit the alleged facts and to accept punishment without accepting or denying responsibility for the charges.