{ "id": 3125697, "name": "In re JOHN A. BETTS, Attorney, Respondent", "name_abbreviation": "In re Betts", "decision_date": "1985-10-03", "docket_number": "No. 61411", "first_page": "154", "last_page": "177", "citations": [ { "type": "official", "cite": "109 Ill. 2d 154" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "89 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493936 ], "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0007-01" ] }, { "cite": "85 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469377 ], "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0318-01" ] }, { "cite": "98 Ill. 2d 215", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123449 ], "year": 1981, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0215-01" ] }, { "cite": "91 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092788 ], "year": 1983, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0316-01" ] }, { "cite": "10 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724827 ], "pin_cites": [ { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0357-01" ] }, { "cite": "41 Ill. 2d 549", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853735 ], "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0549-01" ] }, { "cite": "75 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990447 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "124" }, { "page": "126" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0118-01" ] }, { "cite": "60 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415570 ], "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0439-01" ] }, { "cite": "98 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122603 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0248-01" ] }, { "cite": "83 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553934 ], "weight": 2, "pin_cites": [ { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0907-01" ] } ], "analysis": { "cardinality": 1125, "char_count": 34957, "ocr_confidence": 0.722, "pagerank": { "raw": 1.7214169921776929e-07, "percentile": 0.703996835336732 }, "sha256": "0560029d720fe127961eb84f9bd585ae45eaa6228d4d463a88a618f9a20d683b", "simhash": "1:a82d5842254dec08", "word_count": 5531 }, "last_updated": "2023-07-14T21:33:34.159568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re JOHN A. BETTS, Attorney, Respondent." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nThe Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging respondent, John A. Betts, with professional misconduct. The charges stem from respondent\u2019s participation in a conservatorship proceeding. The complaint alleged that respondent knowingly made false statements in the filing of a petition for conservatorship; that he knowingly created false evidence; and that he engaged in conduct involving dishonesty, deceit and misrepresentation. The Hearing Board found respondent guilty of the above charges and recommended that he be suspended from the practice of law for a period of one year. Both the Administrator and respondent filed exceptions with the Review Board. The Review Board concluded that the Administrator had not proved the charges by clear and convincing evidence and recommended that the complaint be dismissed. (94 Ill. 2d R. 753(e)(3).) We granted the Administrator\u2019s petition for leave to file exceptions to the report and recommendation of the Review Board. 94 Ill. 2d R. 753(e)(6).\nAt issue is whether the charges of misconduct were proved by clear and convincing evidence. Additionally, respondent contends that he was denied a fair hearing, in part, because the Hearing Board conducted hearings over a seven-week period instead of on a continuous basis in violation of Rule 9.1 of the Rules of the Attorney Registration and Disciplinary Commission. (Ill. Rev. Stat. 1981, ch. 110A, following par. 771.) He also maintains that members of the Hearing Board represented clients with adverse interests to those of respondent in civil matters related to the charges in this proceeding, and that the hearing panel erroneously precluded respondent from introducing certain evidence.\nThe relevant facts are as follows. Respondent was admitted to the Illinois bar in October 1975. Soon thereafter he began representing Lyle and Robert Weber in various business and real estate transactions. The Webers owned a realty company. In March 1978, respondent, on behalf of the Webers and himself, approached Emil Knutson and inquired whether Knutson\u2019s property was for sale. The Webers and respondent were interested in developing a residential subdivision on Knutson\u2019s property, a 20-acre tract in La Salle County. According to Lyle Weber, respondent was to provide all the legal services involved in purchasing and subdividing the parcel in return for a one-third interest in the subdivision project.\nKnutson, who was then 79 years old, had lived on the property for most of his life. His only source of income consisted of benefits from a pension and social security amounting to approximately $600 a month. According to respondent, the only structure on the property was an \u201cold ramshackle beaten-down building.\u201d After viewing the property, respondent inquired whether the property was for sale. Knutson offered to sell the property for $500 an acre, or $10,000.\nRespondent thereafter discussed the possible purchase with the Webers. They agreed with respondent that Knutson\u2019s asking price of $10,000 was acceptable and directed respondent to prepare a title report on the property. The title search revealed that Knutson owned approximately a 51% interest in the property. The other owners were relatives of Knutson. According to respondent, Knutson denied knowing the whereabouts of any of his relatives. However, Knutson testified that he told respondent that he had a niece who lived in. California, and another who lived in Chicago.\nUpon discovering Knutson\u2019s fractional interest, respondent stated that he attempted to locate the other owners. By examining records in the township assessor\u2019s office, respondent found the name and address of Carol Mitchell, a niece of Knutson who lived in California. Mitchell did not have an interest in the property at that time. She testified, however, that Knutson had promised to devise the property to her in his will. Respondent called Mitchell on March 19, 1978, regarding the whereabouts of any relatives who might have had an ownership interest in the property. Mitchell told respondent that he could not purchase the property because Knutson was not the sole owner. She refused to give him the addresses of any relatives. Respondent testified, however, that he learned from their conversation that only two other relatives \u2014 Mary and Edward Knutson \u2014 had a substantial interest in the property. Respondent also learned from Mitchell that these two relatives lived near Dixon, Illinois. In an effort to locate Edward and Mary Knutson, respondent called directory assistance and the Dixon, Illinois, police department. Both attempts were unsuccessful. Thereafter, on March 26, 1978, respondent again called Mitchell and requested that she furnish him with the addresses of relatives having an interest in the property. Mitchell refused.\nOn March 29, 1978, respondent, along with the Webers, purchased Knutson\u2019s interest for the agreed price. As part of the agreement, the Webers also paid $1,000 in real estate taxes due on the property. In addition, the quitclaim deed from Knutson to Lyle Weber reserved to Knutson the \u201c[r]ight *** to retain use of the East 150 feet of the Real Estate *** for his lifetime or until his abandonment of the premises whichever comes first.\u201d Subsequently Weber conveyed title to the parcel by warranty deed to the First National Bank of Ottawa in trust. Respondent was named the sole beneficiary. A title insurance policy was issued in the name of the trustee, and \"John Betts owner of propertyf.] Development contract among Lyle P. Weber, Robert F. Weber & John Betts.\u201d\nPrior to the purchase, police had investigated several disturbances on the Knutson property. The evidence introduced at respondent\u2019s hearing showed that the number of disturbances on the property increased significantly after the March 1978 conveyance. The evidence also showed that Knutson\u2019s living conditions were substandard.\nTom Templeton, a La Salle County deputy sheriff, testified that he visited Knutson\u2019s residence in the fall of 1978. Upon entering Knutson\u2019s trailer he found several persons, including Knutson, unconscious on the floor. According to Templeton, all of the persons in the trailer had been drinking. He observed garbage strewn about the trailer, and human excrement on the floor. The trailer smelled of sewage. He testified that a hole cut in the corner of the trailer was being used as a toilet.\nDavid Keller, chief of police of the Seneca police department, testified that he had responded to several disturbance calls on the property. On each occasion he said that Knutson appeared to have been intoxicated. Several other law-enforcement officials testified about the conditions and disturbances on the Knutson property. They testified that the property had become a center for certain undesirable young people. They also testified that they had received complaints from neighbors about noise, drinking, fighting, and the use of firearms on the property.\nThe numerous complaints about the disturbances and conditions on the property culminated in a meeting attended by the La Salle County State\u2019s Attorney, respondent, the Webers, and several of Knutson\u2019s neighbors. The State\u2019s Attorney testified at respondent\u2019s hearing that he suggested that a conservatorship for Knutson be considered as a solution to the problem. He also suggested that respondent employ John W. Hardin III, a local attorney, to institute the conservatorship proceeding.\nRespondent contacted Hardin on September 22, 1978, and inquired whether Hardin would be interested in serving as conservator. After meeting with Knutson and observing his living conditions, Hardin agreed to represent respondent in the conservatorship proceeding. Thereafter, Hardin requested a hearing and assistance for Knutson from the Manlius Township Health Board.\nOn October 2, 1978, respondent asked Dr. Terrance W. Love, a physician, to accompany him to the Knutson property for the purpose of making an examination. Dr. Love testified that his examination consisted solely of history taking, interrogation, and close observation of Knutson and Knutson\u2019s living conditions. He left his medical instruments in the car at the request of respondent, who stated that he believed Knutson would become belligerent if the purpose of the visit was made known to him. Once inside Knutson\u2019s trailer,' Dr. Love discovered that it was filled with garbage andfinfested with rodents. Both the trailer and Knutson\u2019s clothing smelled of urine. Dr. Love also observed that the trailer lacked plumbing, electricity, water or a telephone. A woodburning stove in the trailer did not function. There was no food in the trailer.\nDr. Love also testified that Knutson appeared to suffer from several physical ailments, including a severe eye irritation, a fungal infection in the fingernails, enlarged joints in the fingers, and clubbing, which indicated a lung problem. Dr. Love observed that Knutson suffered unintentional tremors in his hands, a symptom he attributed to parkinsonism or alcoholism. Respondent subsequently prepared an affidavit signed by Dr. Love which stated that it was Dr. Love\u2019s opinion that Knutson was \u201cphysically and mentally incapable of managing his personal estate and his person within the meaning prescribed\u201d by Illinois law.\nThe Manlius Township Health Board conducted a hearing on October 6. Knutson, respondent, and Hardin were present at the hearing. The Board discovered that Knutson had spent the $10,000 he had received in March for the sale of his property. The Board also discovered that Knutson had spent all but $1.47 of his monthly pension and social security benefits within three days of their receipt, leaving him without any source of income for nearly a month. The Health Board determined that Knutson\u2019s \u201chealth condition and the physical condition of his living quarters *** indicate that he needs supervision in daily living habits.\u201d Following the hearing, respondent and Hardin filed a verified petition for conservatorship. The petition was accompanied by Dr. Love\u2019s affidavit.\nA hearing was held on respondent\u2019s petition on October 11, 1978, in the circuit court of La Salle County. Respondent, Hardin and Knutson were present at the hearing. Attorney Stephen J. West, who respondent had asked that morning to serve as guardian ad litem, also was in attendance. At the conclusion of the hearing, Knutson was declared incompetent and Hardin was appointed conservator. Hardin then requested a writ of assistance, which was granted. That evening sheriff\u2019s deputies removed Knutson to a nursing home. Hardin testified that he requested a writ of assistance because Knutson threatened to run away.\nThe next day, the Webers paid respondent $10,000 for legal services and respondent\u2019s interest in the property. Respondent amended the land trust to transfer the beneficial interest to the Webers.\nOn October 16, 1978, Stephen West, Knutson\u2019s guardian ad litem, filed a petition to remove the conservator. West testified that prior to the October 11 conservator-ship hearing, respondent had represented to him that Knutson did not own any real property or have any relatives. West said that he also was unaware of respondent\u2019s beneficial interest in the land trust before the October 11 hearing. Upon discovering this information, he filed the petition to remove the conservator. Hardin voluntarily resigned as conservator on October 19, and a new conservator was appointed on October 23. Thereafter, on November 9, West filed a petition to vacate the October 11 order of incompetency. Following a hearing on December 1, the trial court determined that the petition for conservatorship prepared by respondent was \u201cbased on misleading allegations and conclusions not substantiated by fact,\u201d and vacated the October 11 order of incompetency.\nKnutson subsequently filed a petition pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41, now Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014611), requesting that costs and attorney fees be assessed against respondent. The trial court determined that allegations contained in the verified petition for conservator-ship prepared by respondent were false and made without reasonable cause. It assessed $2,058.75 in fees and costs against respondent. The trial court\u2019s fee award was upheld by the appellate court. In re Estate of Knutson (1980), 83 Ill. App. 3d 907.\nThe gravamen of the Administrator\u2019s complaint concerns two statements contained in respondent\u2019s verified petition requesting that a conservator be appointed for Knutson and a statement contained in the \u201cphysician\u2019s affidavit,\u201d prepared by respondent and signed by Dr. Love. The \u201cphysician\u2019s affidavit\u201d was prepared in conjunction with the petition for conservatorship.\nAt the time respondent prepared the petition for conservatorship, the requirements for such petitions were set forth in section 11\u20149 of the Probate Act of 1975. (Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11\u20149.) That section provided:\n\u201cThe petition for adjudication of incompetency and appointment of a conservator of the person or of the estate of an alleged incompetent must state, if known: (a) the name and place of residence of the alleged incompetent; (b) the names and post office addresses of the nearest relatives of the alleged incompetent in the following order: (1) the spouse and adult children, if any; if none, (2) the parents and adult brothers and sisters, if any; if none, (3) the nearest adult kindred; (c) the reasons for the conservatorship, (d) the approximate value of the personal estate, (e) the amount of the anticipated gross annual income and other receipts, (f) the name and post office address of the proposed conservator and of any conservator designated by the alleged incompetent pursuant to Section 11\u20144 and, in the case of an individual, his age and occupation. A petition for the adjudication of incompetency and appointment of a conservator may not be dismissed or withdrawn without leave of the court in which it is filed. Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11\u20149.\nThe verified petition for conservatorship prepared by respondent stated in part:\n\u201c2. That to the best of the Petitioner\u2019s [respondent\u2019s] knowledge that [sic] there are no living relatives of the alleged incompetent in the State of Illinois. ***\n4. *** to the best of the Petitioner\u2019s knowledge the incompetent owns no real estate in La Salle County or Illinois.\u201d\nThe \u201cphysician\u2019s affidavit,\u201d prepared by respondent and signed by Dr. Love, stated in relevant part:\n\u201c2. On October 2, 1978, I examined EMIL J. KNUTSON.\u201d\nThe Hearing Board determined that respondent was guilty of the charged misconduct, and it recommended that he be suspended from the practice of law for one year. The Review Board concluded that the Hearing Board\u2019s findings were not established by clear and convincing evidence as required by our Rule 753(c) (87 Ill. 2d R. 753(c); In re Woldman (1983), 98 Ill. 2d 248, 254; In re Bossov (1975), 60 Ill. 2d 439, 441). It recommended that the complaint be dismissed.\nBefore we consider the charges of misconduct filed by the Administrator, we address respondent\u2019s argument that certain alleged errors below deprived him of a fair hearing.\nRespondent first argues that he was denied a fair hearing because the Hearing Board conducted hearings over a seven-week period instead of on a continuous basis in violation of Rule 9.1 of the rules of the Attorney Registration and Disciplinary Commission. (Ill. Rev. Stat. 1981, ch. 110A, following par. 771.) Rule 9.1 provided:\n\u201cHearings on complaints shall be continuous from day to day until the taking of evidence is completed. Hearings may be held on Saturdays.\u201d Ill. Rev. Stat. 1981, ch. 110A, following par. 771.\nThe record shows that the hearings were held before a panel of the Hearing Board on June 2 and June 3, 1983, and thereafter on June 24 and July 18, 1983. At the close of hearings on June 3, the chairman of the Hearing Board panel suggested that the hearing be continued on agreement of the parties. Respondent\u2019s counsel made no objection. Following testimony on June 24, respondent\u2019s counsel agreed to a continuance. Because respondent failed to object to the first continuance and did in fact agree to the second continuance, we hold that he has waived this issue. We note that even if respondent had not waived the issue, the failure of the Hearing Board panel to conduct continuous hearings would not deprive this court of the right or power to further consider the charges against respondent. Technical objections concerning the practice and procedures before the hearing and review boards will not \u201cbind us or limit our authority to act.\u201d (In re Mitan (1979), 75 Ill. 2d 118, 124; In re Czachorski (1969), 41 Ill. 2d 549, 554.) Moreover, our review of the record convinces us that respondent was not prejudiced by the delay. We therefore reject respondent\u2019s first assignment of error.\nRespondent next contends that the Hearing Board erred in refusing to admit an exhibit tendered by him. The exhibit was a copy of a judgment order entered by the La Salle County circuit court in a case entitled Hardin v. Ottawa Publishing Co. 79 \u2014 L\u2014392, finding that certain statements published by the Ottawa Publishing Company regarding attorney John Hardin were libelous. The statements allegedly concerned Hardin\u2019s participation in Knutson\u2019s conservatorship proceeding. When offered at respondent\u2019s disciplinary hearing, the exhibit was objected to on the grounds of relevance. We agree with the Administrator that the Hearing Board properly rejected the exhibit. The exhibit concerned a judgment obtained by Hardin, not respondent, and has no bearing on whether respondent engaged in professional misconduct.\nRespondent also alleges that members of the Hearing Board represented clients with interests which are adverse to those of respondent in civil matters related to the charges in this proceeding. He thus argues that he was denied a hearing before an impartial tribunal.\nRespondent was certainly entitled to a hearing before an impartial tribunal. Whenever a Hearing Board member has an interest, financial or otherwise, in the subject matter of the proceeding, the member must recuse himself. (In re Heirich (1956), 10 Ill. 2d 357, 384-85.) If there was evidence that a member of the Hearing Board panel in this case had an interest which conflicted with respondent\u2019s, the court would not hesitate to order a new hearing. However, there is no evidence whatsoever establishing that a member of the Hearing Board panel represented a client with interests adverse to those of respondent, or that a member of the panel was personally interested in the outcome of the proceeding. We will not order a new hearing on the basis of mere allegations contained in respondent\u2019s brief. Therefore, we reject the contention that respondent was denied a hearing before an impartial tribunal.\nRespondent alleges that certain actions of the Administrator constituted prosecutorial misconduct and thus deprived him of due process. The first allegation of misconduct concerns the Administrator\u2019s failure to deliver a copy of the complaint to the chairman of the relevant Inquiry Board panel as required by Rule 4.2 of the rules of the Attorney Registration and Disciplinary Commission. (Ill. Rev. Stat. 1981, ch. 110A, following par. 771.) Rule 4.2 provided:\n\u201cThe complaint shall be prepared by the Administrator. A copy shall be filed by him with the Hearing Board. A copy of the complaint shall concurrently be filed with the Chairman of the Inquiry Panel which voted the complaint.\u201d (Ill. Rev. Stat. 1981, ch. 110A, following par. 771.)\nRule 4.2 was promulgated in accordance with Supreme Court Rule 753. (87 Ill. 2d R. 753.) Rule 753(a) provides in part that charges of misconduct are to be investigated and considered by an Inquiry Board. The Inquiry Board may vote to dismiss a charge, discontinue an investigation undertaken on its own motion, or file a complaint with the Hearing Board. (87 Ill. 2d R. 753(a).) Rule 753(b) (87 Ill. 2d R. 753(b)) states:\n\u201cA complaint voted by the Inquiry Board shall be prepared by the Administrator and filed with the Hearing Board. The complaint shall reasonably inform the attorney of the acts of misconduct he is alleged.to have committed.\u201d\nThe court, in In re Mitan (1979), 75 Ill. 2d 118, examined the purpose of Rules 753(a) and (b). The court stated the following:\n\u201cThe purpose of our Rules 753(a) and (b) is to prevent the Administrator from acting solely on his own in an arbitrary or dictatorial manner. The attorney-respondent is given the protection of having to answer charges only when they have been made by the Inquiry Board after it has considered the facts upon which they are based independently of prosecutorial interests of the Administrator.\u201d 75 Ill. 2d 118, 126.\nThe record in the present case indicates that the Inquiry Board voted to file a complaint against respondent on March 1, 1980, but stayed the filing of the complaint until a related civil suit involving respondent was completed. The complaint was filed by the Administrator on September 29, 1982. A copy of the complaint was filed with the Hearing Board. Respondent also was served with a copy of the complaint. The record thus shows that the Administrator fully complied with Rules 753(a) and (b) and provided respondent with all the protections required. Respondent argues, however, that Rule 4.2 of the rules of the Attorney Registration and Disciplinary Commission additionally required a copy of the complaint to be filed with the chairman of the appropriate Inquiry Board panel, and the Administrator\u2019s failure to do so constituted prosecutorial misconduct. Respondent\u2019s argument is without merit. Rule 4.2 is a procedural rule of the Commission and does not limit this court\u2019s authority to act. (In re Mitan (1979), 75 Ill. 2d 118, 124.) At most, the Administrator\u2019s conduct amounted to a technical oversight. Since respondent was provided with all the protections required by Rules 753(a) and (b) he was not denied due process.\nThe second allegation of prosecutorial misconduct concerns a letter from the Administrator to members of the Hearing Board panel, following completion of respondent\u2019s hearing. The letter, dated December 29, 1983, reminded panel members that respondent\u2019s hearing had been completed on July 18, 1983, and requested that they quickly prepare the Hearing Board\u2019s report and recommendation. The letter recited Rule 9.2 of the rules of the Attorney Registration and Disciplinary Commission (Ill. Rev. Stat. 1981, ch. 110A, following par. 771), which provided for the expeditious preparation of Hearing Board reports and recommendations. The letter is signed by the Administrator. Below the Administrator\u2019s signature, in handwritten form, is the following message: \u201cGentlemen \u2014 Please!\u201d The message is followed by the Administrator\u2019s initials.\nRespondent contends that this ex parte communication with members of the the Hearing Board panel, particularly the handwritten message, was improper and constituted prosecutorial misconduct. We disagree. The letter did not address the merits of respondent\u2019s case, but only urged members of the Hearing Board panel to comply with Rule 9.2 and quickly prepare the panel\u2019s report and recommendation. We find nothing improper with the contents of the letter. Moreover, we do not, unlike respondent, attribute any significance to the phrase, \u201cGentlemen \u2014 Please!\u201d We interpret it to be nothing more than an additional exhortation to panel members to quickly prepare and file the report. Respondent was in no way prejudiced by the letter.\nNext, we address the charges of misconduct. The first statement in the petition for conservatorship which is alleged to be false and misleading concerns the existence of Knutson\u2019s relatives. The petition stated: \u201cThat to the best of the Petitioner\u2019s [respondent\u2019s] knowledge that there are no living relatives of the alleged incompetent in the State of Illinois.\u201d\nThe evidence shows that respondent conducted a title search on the Knutson property in March 1978. The title search disclosed that Knutson owned only a fractional interest in the subject property and that the other owners were Knutson\u2019s relatives. Respondent testified that Knutson denied knowing the whereabouts of any relatives. That fact was disputed by Knutson, who testified that he told respondent that he had a niece who lived in Chicago and another who lived in California. Respondent also testified that, by examining records in the township assessor\u2019s office, he discovered that Knutson had a niece, named Carol Mitchell, who lived in California. According to respondent, Mitchell refused to give him any information concerning the whereabouts of Knutson\u2019s relatives except to say that two relatives \u2014 Edward and Mary Knutson \u2014 lived near Dixon. Respondent called directory assistance and the Dixon police department in an effort to locate Mary and Edward Knutson, but these efforts were unsuccessful. A second call to Mitchell was made, but again she refused to give respondent any information concerning the whereabouts of Knutson\u2019s relatives.\nMitchell corroborated the fact that respondent had contacted her on several occasions and that she refused to provide him with the addresses of Knutson\u2019s relatives. She also testified that respondent specifically inquired as to the whereabouts of several of Knutson\u2019s relatives, including Hazel, Mary and Edward Knutson; Lois Burman; and John and Fred Swanson.\nThe Hearing Board concluded that respondent made a knowing misstatement regarding the existence of Knutson\u2019s relatives. Testimony concerning this matter was conflicting. This court has repeatedly stated that the \u201cresolution of conflicting testimony is best resolved by the hearing panel, since it had the advantage of observing the witnesses.\u201d (In re Chernoff (1982), 91 Ill. 2d 316, 323. See also In re Schneider (1983), 98 Ill. 2d 215, 221; In re Hopper (1981), 85 Ill. 2d 318, 323.) The Hearing Board\u2019s findings are entitled to substantially the same weight as any initial trier of fact. (In re Feldman (1982), 89 Ill. 2d 7, 10.) We have reviewed the record, and find substantial support for the Hearing Board\u2019s finding on this issue.\nMoreover, we believe that respondent\u2019s statement concerning the existence of relatives was untrue and misleading in another respect. The statute governing conservatorship proceedings required the petition to contain: \u201c(b) the names and post office addresses of the nearest relatives of the alleged incompetent in the following order: (1) the spouse and adult children, if any; if none, (2) the parents and adult brothers and sisters, if any; if none, (3) the nearest adult kindred ***.\u201d (Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11\u20149.) Thus, respondent was required to list, if known, the nearest adult kindred, not just the names of relatives who lived in Illinois. It is undisputed that respondent was aware of the existence of Mitchell, Knutson\u2019s niece, at the time he prepared the petition for conservatorship. He was required to list her name and address in the petition.\nWe also find substantial support in the record for the Hearing Board\u2019s finding that the statement \u201cthe incompetent owns no real estate in La Salle County or Illinois\u201d was false and misleading. It is undisputed that Knutson had a life estate in a portion of the 20-acre tract at the time the conservatorship petition was filed. Respondent prepared the deed reserving Knutson\u2019s life interest. Thus, the statement that Knutson \u201cowns no real estate\u201d was false and misleading. We do not agree with the argument advanced by respondent and adopted by the Review Board that a reasonable person, in preparing the petition, could believe that the term \u201cown\u201d only \u201ccontemplates a fee interest.\u201d Respondent, as an attorney, was well aware that a life estate constitutes a legal interest in land.\nThe Hearing Board also determined that a statement contained in the physician\u2019s affidavit prepared by respondent and signed by Dr. Terrance W. Love constituted a knowing creation of false evidence. The allegedly false statement was, \u201cOn October 2, 1978, I examined EMIL J. KNUTSON.\u201d After reviewing the record, we agree with the Review Board that the Hearing Board\u2019s findings as to this issue are not supported by clear and convincing evidence. Dr. Love testified that he examined Knutson at the latter\u2019s home on October 2, 1978. He testified that his examination consisted solely of history taking, interrogation, and close observation of Knutson and Knutson\u2019s living conditions. Based on this examination, Dr. Love testified that it was his opinion that Knutson was \u201cphysically and mentally incapable of managing his personal estate and person within the meaning prescribed\u201d by Illinois law. The Administrator argues that the examination performed by Dr. Love was not a \u201cphysical\u201d examination, such as the type that would be performed in a physician\u2019s office. He thus contends that the claim by Dr. Love that he \u201cexamined\u201d Knutson constitutes a knowing falsity. We disagree. Dr. Love\u2019s affidavit does not claim that he performed a physical examination as that term is defined by the Administrator. All of the findings contained in the physician\u2019s affidavit could be determined by the type of examination performed by Dr. Love. Moreover, none of the supporting facts in the affidavit are alleged to be untrue. We therefore reject the Hearing Board\u2019s finding on this issue as not being supported by clear and convincing evidence.\n\u2022We are aware of the decision in In re Estate of Knutson (1980), 83 111. App. 3d 907, wherein the appellate court affirmed the trial court\u2019s assessment of attorney fees against this respondent based in part on a finding that the statement in the physician\u2019s affidavit that Dr. Love \u201cexamined\u201d Knutson was false. However, the standard of proof in that case was by a preponderance of the evidence. Charges of attorney misconduct must be proved by the higher standard of clear and convincing evidence. (87 Ill. 2d R. 753(c); In re Woldman (1983), 98 Ill. 2d 248, 254.) Moreover, the appellate court found, as do we, that Dr. Love did in fact observe Knutson (In re Estate of Knutson (1980), 83 Ill. App. 3d 907, 910). The appellate court\u2019s finding that the affidavit was false was based on its belief that the examination did not qualify as a \u201cmedical\u201d examination. We have already rejected that argument as being without merit. The affidavit did not claim or infer that Dr. Love performed a medical or physical examination. The evidence is undisputed that Dr. Love performed an oral and visual examination of Knutson and Knutson\u2019s living conditions. As the Review Board correctly observed, the Administrator was free to challenge Dr. Love\u2019s credibility and the thoroughness of the doctor\u2019s examination, but was obligated to prove by clear and convincing evidence that the physician\u2019s affidavit was false. We find that the allegation that the physician\u2019s affidavit was false was not proved by clear and convincing evidence.\nIn determining the sanction that should be imposed in this case, we take into account the fact that nothing in the law prevented respondent from serving as petitioner in Knutson\u2019s conservatorship proceeding. Although respondent had a financial interest in the Knutson property and could have possibly benefited from Knutson\u2019s removal from the property, the statute only required a petitioner in such proceedings to be a \u201creputable citizen of this State.\u201d (Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11\u20144.) It did not prohibit interested parties from serving as petitioners. We also find substantial support in the record for the Hearing Board\u2019s finding that Knutson was an \u201celderly person, of questionable mental competency, and apparently living in extremely substandard conditions ***.\u201d Furthermore, the statements contained in the petition which were untrue and misleading did not directly concern Knutson\u2019s competency. As such, we are of the opinion that respondent\u2019s actions fell short of perpetrating a fraud on the court. Therefore, we do not believe that the sanction of disbarment, which was recommended by the Administrator, is warranted.\nNevertheless, we do not think that respondent\u2019s conduct comported with accepted professional standards. The untrue allegations in the petition concerning relatives and ownership of property tended to support the allegation of incompetency in that they diverted the trial judge from questioning respondent\u2019s credibility and the believability of respondent\u2019s evidence. The record shows that Mitchell was hostile to respondent\u2019s attempt to purchase the Knutson property, and certainly would have opposed the appointment of a conservator for her uncle had she been notified of the hearing. Respondent\u2019s statement regarding relatives ensured that Mitchell was not notified of the competency hearing prior to its occurrence. The statement regarding Knutson\u2019s lack of ownership of real property was not required by the statute. (See Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11\u20149.) By stating to the court that Knutson owned no real estate, respondent avoided the disclosure of his own adverse property interest. The record shows that respondent never informed the trial court that he had an interest in the property. The record also indicates that Knutson\u2019s guardian ad litem, Stephen West, was never informed prior to the competency hearing that Knutson had a life estate in the property, that Knutson had relatives, or that respondent had a financial interest in the property. We find this to be particularly unacceptable in light of the fact that it was respondent who arranged for West to be the guardian ad litem the day of the hearing. Respondent\u2019s lack of candor and truthfulness contributed to deprive an elderly man of his freedom and liberty. The fact that there was some basis for believing that a conservator was necessary for Knutson does not absolve the respondent of his wrongful conduct.\nIn mitigation, the record reveals that respondent began practicing as an attorney in 1976. He was unfamiliar with the practice and procedures connected with the filing of conservatorship petitions when the events under consideration here occurred in 1978. Respondent has not previously been subject to disciplinary action. Under the circumstances, we believe that the appropriate sanction is that respondent be suspended for a period of six months.\nRespondent suspended.\nJUSTICE RYAN took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE MORAN" } ], "attorneys": [ "Daniel Drake, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.", "Peter F. Ferracuti, of Ottawa, for respondent." ], "corrections": "", "head_matter": "(No. 61411.\nIn re JOHN A. BETTS, Attorney, Respondent.\nOpinion filed October 3, 1985.\nRehearing denied December 11, 1985.\nRYAN, J., took no part.\nDaniel Drake, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.\nPeter F. Ferracuti, of Ottawa, for respondent." }, "file_name": "0154-01", "first_page_order": 166, "last_page_order": 189 }