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

In re JEROME KRULE, Petitioner.

Opinion filed December 1, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Jerome Krule petitioned this court for review of the mostrecent recommendation by the Committee on Character andFitness (the Committee) that he not be certified for admission tothe bar. 166 Ill. 2d R. 708(d). After the Committee filed itsresponse, we allowed Krule's petition and permitted the parties topresent oral argument. For the reasons that follow, Krule'sapplication for admission to the bar is denied.

Jerome Krule graduated from the John Marshall Law Schoolin 1994. In 1995, the Committee on Character and Fitness (theCommittee) voted not to recommend certification of Krule foradmission to the practice of law. In reaching that decision, theCommittee was most concerned with Krule's participation in aninsurance fraud scheme which resulted in his conviction of afelony in 1988. The Committee felt that Krule was less thancandid in describing his role in the scheme and he had notadequately demonstrated that he was rehabilitated. The Committeealso expressed concern over Krule's apparent lack of candor infailing to apprise his law school of three previous misdemeanorconvictions.

Krule sought a new hearing in 1996. Because his request wasmade prior to expiration of the requisite two-year waiting periodfollowing the Committee's 1995 decision, it was denied. BarAdmission Rule 9.1. Krule then filed another petition for a newhearing in 1998. This time the Committee granted the petition, andthe hearing panel convened a new hearing in the case in March of1999.

After taking evidence, the hearing panel concluded that Krulehad failed to meet his burden of proving by clear and convincingevidence that he possesses the requisite moral character andgeneral fitness to practice law. The hearing panel furtherconcluded that Krule had once again failed to show that he hadbeen sufficiently rehabilitated. Based on these conclusions, theCommittee adhered to its original decision and voted not torecommend certification of Krule.

In undertaking our review of the Committee's decision, webegin by noting that the final judgment regarding admission of anapplicant to the practice of law rests with this court. As a generalrule, a determination by the Committee on Character and Fitnessconcerning the character and fitness of an applicant neither bindsthis court nor limits our authority to take action. In re Loss, 119 Ill.2d 186, 192 (1987). We have also held, however, that where ahearing panel concludes that a petitioner does not possess the goodmoral character and general fitness necessary for the practice oflaw and recommends that certification be denied, as was the casehere, this court will not reverse unless that recommendation wasarbitrary. In re Glenville, 139 Ill. 2d 242, 252 (1990).

The criminal conviction which led to the original denial ofKrule's certification arose from a scheme he facilitated tosystematically defraud insurance companies. At the time, Krulewas a licensed insurance professional. He testified that hecontacted an attorney named George Anderson to "go intobusiness with him in personal injury." The business worked thisway.

Anderson owned some taxi cabs, and Krule took a job in hisoffice. When one of the taxi drivers was involved in an accident,Krule would arrange for him to see a Dr. Starkman. With Krule'sknowledge and complicity, Starkman would deliberately generateinflated bills containing charges for services that were notnecessary or were not performed. Krule, in turn, would submit thefraudulent bills to insurance companies for reimbursement. Kruleengaged in this activity from August of 1986 through February of1987. During this period he submitted scores of false claims toeight different insurance companies.

Krule's insurance fraud scheme ended with an 82-countindictment issued by a Du Page County grand jury. Named asdefendants were Krule, attorney Anderson, Dr. Starkman, and sixother individuals. Krule pled guilty to one count of theft, a felony,in exchange for his testifying as a government witness. He wassentenced to 30 month's probation. As a condition of probation hewas required to complete 950 hours of community service and pay$5,000 in restitution. Krule's probation was terminatedsatisfactorily on October 1, 1990.

Attorney Anderson also pled guilty to theft. He was orderedto pay a fine of $100 and $77 in court costs and was placed onconditional discharge. The condition imposed by the sentencingjudge was that Anderson was required to file a motion with ourcourt for disbarment on consent. Anderson filed such a motion onFebruary 16, 1990, and it was allowed by this court on March 27,1990.

Following these developments, Krule applied to and wasaccepted for admission by the John Marshall Law School. Aspreviously indicated, Krule graduated from there in 1994. TheCommittee on Character and Fitness subsequently refused tocertify him for admission to the bar, primarily because of hisfelony conviction and the nature of his involvement in theinsurance fraud scheme.

In ruling as it did, the Committee noted Krule's lack of candorabout these events when he applied for law school. Krulecharacterized his role as that of a "clerk," even though histestimony at trial indicated that he played a far more substantialrole and helped devise the scheme. A letter written by Krule to thelaw school's dean contained falsehoods, and the Committee foundthat Krule had refused to accept responsibility for his illegal andunethical conduct. Finally, the Committee expressed concern thatKrule had failed to disclose three misdemeanor charges, two ofwhich involved pleas of guilty, on his law school application.Krule admitted that the reason he was not truthful about thosecharges is that he feared they would jeopardize his chances foradmission into law school.

Following his felony conviction, Krule obtained employmentand engaged in volunteer and charitable activities beyond thosenecessary to comply with the terms of his probation. TheCommittee acknowledged these factors and took note of positivetestimony from character witnesses. The Committee neverthelessconcluded that "specific evidence" of rehabilitation was lacking.The Committee also cautioned Krule that

"an applicant for admission does not become entitled tocertification of his character and fitness simply byfulfilling the educational requirements and byparticipating in civic and charitable activities."

When Krule obtained a new hearing in 1999, he testified onhis own behalf. He told the Committee that he would consider hislaw license his most valuable possession. He has worked in theEvanston community defender office and served as a teacher ofEnglish as a second language in the Oakton Community Collegeadult education program. He stated that he would like to practicelaw in the public sector and intended to continue his volunteerwork regardless of the Committee's decision.

Krule admitted that because he was an insurance professionalat the time, "maybe he had more of a major role" than the otherparticipants in the insurance fraud scheme that resulted in hisfelony conviction. He expressed remorse for his illegal conductand said he regretted his failure to report the misdemeanorconvictions when he submitted his law school application.

In addition to testifying himself, Krule presented thetestimony of seven character witnesses. One of these wasAssociate Circuit Judge Fe Fernandez of the circuit court of CookCounty, who appeared on Krule's behalf.⁽¹⁾ Prior to taking thebench, Judge Fernandez had worked with Krule at the Evanstoncommunity defender office. According to Judge Fernandez, Krulehad done volunteer work at the community defender office on an"as needed" basis since he was denied certification in 1995. RobertRoy, director of the community defender office, also testified. Royand Judge Fernandez opined that Krule is honest, trustworthy anddedicated to his goal of becoming a lawyer.

Additional testimony was provided by Patricia McCarthy, areading specialist at East Prairie school district in Skokie, andMarilyn Antonik, program manager for volunteer teaching in theadult education division and coordinator of the adult literacyprogram at Oakton Community College. McCarthy and Antonikdescribed Krule's work with Oakton Community College andreported that he was generous in donating his time and dedicatedto his students. They also attested to his trustworthiness.

Edward Michael Reilly, a Chicago police officer and lawyerwho had attended law school with Krule, said that Krule would bean ethical lawyer. Ralph Ruebner, a professor at John MarshallLaw School, and Elmer Gertz, a former professor at John MarshallLaw School, testified that they had known Krule since he was alaw student. Gertz is also a friend of Krule's family. Ruebnerbelieved that Krule had matured, and both professors thought thathe could be a competent and trustworthy lawyer.

In addition to the foregoing testimony, Krule presentedaffidavits from George Leighton, formerly a United States districtjudge; Dean Robert Johnston of the John Marshall Law School;and Professor William Carroll and Professor Seng, also of JohnMarshall. All of these men supported Krule's application andattested to his fitness to practice law.

Following the hearing, witness Marilyn Antonik, from OaktonCommunity College, reported an incident to the Committee thatchanged her opinion of Krule's judgment and trustworthiness.According to Antonik, Krule met with a foreign student at thecollege and gave her a gift and a personal note. He also offered tohelp her obtain a visa.

In his note to the student, which was signed "Love, Jerry,"Krule offered to give the student money for a round trip planeticket to and from her homeland. This incident frightened thestudent, who brought it to the attention of college officials. As aresult, Antonik terminated Krule's services with the college.

The Committee received a copy of Krule's note to the studentas well as a copy of a statement from the student regarding Krule'sactions. One of the things the student claimed in her statement wasthat Krule had shown her a card indicating that he was a lawyer.She also said that Krule had told her not to show the note toanyone and that the incident scared her.

In response to this development, Krule's attorney wrote to theCommittee and submitted an affidavit from Krule. In his affidavit,Krule attested that he did not present himself as an attorney to thestudent. Rather, he told her he was a paralegal for the Evanstoncommunity defender. The card he showed her was his JohnMarshall alumni card. He has no business cards.

Based upon the foregoing evidence, the Committee decided,by a vote of 6 to 1, to adhere to its previous determination. TheCommittee held that Krule had failed to show that he had been"sufficiently rehabilitated to demonstrate that he possesses thecharacter and fitness to practice law." Accordingly, it concludedthat it could "not recommend the certification of Krule and hisapplication to be admitted to the practice of law in Illinois istherefore denied."

In assailing the Committee's determination, Krule takesparticular issue with the Committee's consideration of the post-hearing events involving Krule and the foreign student. Krulecontends that the evidence considered by the Committee consistedof inadmissible hearsay. He claims that before the Committeerelied on the information from Antonik, it should have affordedhim the opportunity to subpoena and depose her under oath.

The objections Krule raises to the Committee's procedures arenot insignificant. With respect to the matter of the lawyeridentification card, we note that the student was Japanese, and herstatement regarding the incident was written in Japanese. It isentirely possible that she misunderstood what Krule had told herabout his professional status or that she did understand it, but thetranslator simply conveyed what she had written incorrectly whenputting it into English. The way the Committee handled thisevidence, Krule had no opportunity to explore these possibilities.

Even if the procedures followed by the Committee were notsubject to challenge, the Committee should not have allowed thepost-hearing events involving the foreign student to affect itsultimate decision. Both Krule and the woman were adults. Krulewas not the woman's teacher and held no position of authorityover her. The gift he gave her was a cosmetics case, and he madethe offer regarding the plane ticket because she had expressed aninterest in returning to the United States. While he had a romanticinterest in the woman, he did not attempt to force himself on herin any way. When she did not respond to his overtures, the matterended. The two had no further communication. The womanreturned to her homeland, and Krule went about his business. Wefail to see how any of this bears on Krule's fitness to practice law.

Having said that, we nevertheless conclude that theCommittee's decision to deny Krule's petition for admission to thebar must be upheld. Contrary to Krule's assertions, the incidentinvolving the foreign student was incidental to the Committee'sfinal determination. In ruling as it did, the Committee reviewed thecircumstances which led to its previous decision, then focused onwhether Krule had shown by clear and convincing evidence thathis rehabilitation is such that he is a fit person to practice law. SeeIn re Loss, 119 Ill. 2d at 196-97.

The criteria applied by the Committee were those set forth byour court in In re Childress, 138 Ill. 2d 87, 100 (1990):

" '(1) [C]ommunity service and achievements, as wellas the opinions of others regarding present character; (2)candor before the court; (3) the age of the applicant at thetime of the offenses; (4) the amount of time which haspassed since the last offense; (5) the nature of theoffenses; and (6) the applicant's current mental state.' " Quoting In re Loss, 119 Ill. 2d at 196.

The Committee noted that Krule had performed "a goodamount of community service" since the Committee had lastconsidered his case. It credited him with caring for his elderly andinfirm parents. It acknowledged the array of character witnesses hepresented, which was impressive by any standard. Especiallysignificant to the Committee was that the people with whom Kruleworked at the Evanston community defender's office have placedtheir trust and confidence in him.

In contrast to the situation in 1995, when he was first turneddown by the Committee, Krule acknowledged his full role in theinsurance fraud scheme, "noting that as an insurance professionalhe had knowledge about the operations of the industry that helpedto further the criminal enterprise." He also expressed his remorsefor "the impact his participation had on individuals andorganizations."

Despite these developments, the Committee believed that thepositive aspects of Krule's application were still outweighed bythe nature and gravity of the criminal offense for which he hadbeen convicted. While a mature adult and a licensed professional,he utilized his professional knowledge to help carry out a criminalscheme involving deception and dishonesty. Thereafter, heattempted to minimize his role in the scheme, mademisrepresentations, and failed to disclose three misdemeanors onhis law school application.

Although Krule was a reliable and committed worker, theCommittee pointed out that his volunteer work "did not entail thekind of independence or the exercise of judgment that wouldpermit a prediction about how Krule would perform in a settingthat did." In the Committee's view, the circumstances presentwhen the insurance fraud scheme was formulated back in the1980s provided a better insight into how Krule might perform asa lawyer when his independence and judgment were challenged.The results were not good. Krule chose to commit a felony.

Based on the record before it, the Committee was not satisfiedthat the result would be different today. Krule professed that hewas sorry and had changed, but the Committee believed that hiswords and actions may have been designed simply to satisfy therequirements of bar admission. Moreover, to the extent Krule wasremorseful, the Committee believed that it may have been remorsethat his conduct interfered with his bar admission rather than agenuine appreciation for how his illegal conduct affected others.

In In re Glenville, 139 Ill. 2d 242 (1990), the applicant had ahistory of juvenile delinquency, arrests for battery and convictionsfor disorderly conduct, driving under the influence, and theft. In Inre Childress, 138 Ill. 2d 87 (1990), the applicant had beenconvicted of rape and robbery and sentenced to prison while ateenager. In In re Loss, 119 Ill. 2d 186 (1987), the applicant'shistory involved juvenile delinquency and convictions fordisorderly conduct, possession and sales of marijuana and otherdrugs, and theft.

In each of the foregoing cases, our court denied theapplicant's petition for admission. Although the crime for whichKrule was convicted may not be as serious as some of the offensescommitted by Glenville, Childress and Loss, we note that Krulewas a mature adult when he engaged in the fraudulent scheme thatculminated in his conviction. Moreover, his criminal scheme arosein the context of circumstances comparable to those with which hewould be faced as an attorney, evincing an inability on Krule'spart to carry out his professional responsibilities honestly.

In that regard, the case is similar to In re Ascher, 81 Ill. 2d485 (1980). Ascher was an accountant, licensed insurance agentand broker, licensed real estate broker, and an "enrolled agent"with the Internal Revenue Service who attended law school laterin life. Prior to passing the bar exam, he was sued by a client forfraud and breach of his fiduciary duty as a tax accountant and realestate agent-broker. He was also found to have engaged in asubterfuge to practice law without a license. Even though Ascher'sconduct did not lead to criminal charges as Krule's did, this courtnevertheless concluded that it raised fundamental questionsregarding his "capacity to make those ethical judgments requiredof an attorney in the course of his practice and the performance ofhis fiduciary responsibilities." In re Ascher, 81 Ill. 2d at 500.

In denying Ascher's application for admission to the bar, thiscourt wrote,

"The integrity of our profession can be no greater thanthat of its members, and we protect neither our professionnor the public when we admit to the profession those whohave demonstrated the insensitivity to its standards whichis evident here." In re Ascher, 81 Ill. 2d at 502.

We believe this sentiment is applicable to the matter before ustoday. As impressive as Krule's character references and publicservice may be, an applicant's subsequent exemplary behaviorcannot lessen the enormity of an earlier offense. In re Childress,138 Ill. 2d at 101. As we held in In re Childress, 138 Ill. 2d at 104,and as the Committee itself indicated when it last refused torecommend Krule, applicants do not become entitled to admissionsimply by fulfilling our educational requirements and participatingin civic and charitable activities.

The public depends on this court to select qualifiedprofessionals who will be conscientious in protecting their clientsand upholding the law. We take that responsibility seriously. Ascareful as we try to be in the selection process, however, wecannot detect every failing that may afflict an attorney. All we cando is make our best judgment based on the results of the bar exam,the contents of the applications and supporting documents, and therecommendations from the Committee.

With each law license we confer, there is a risk that theattorney will not live up to his professional responsibilities. Wedepend on the Committee to help us assess that risk. In this case,the Committee has determined, in effect, that the risk is too great.We cannot say that its determination is arbitrary. What Krule didin defrauding the insurance companies is precisely the sort ofconduct which has brought the legal profession into disrepute. Hefailed to convince the Committee that he is not going to repeat thatconduct, and he has failed to persuade us. In our view, Krule'sadmission would deprecate the seriousness of his crime andundermine the integrity of our profession.

For the foregoing reasons, Krule's application for admissionto the bar is denied.

Petition denied.

JUSTICE MILLER, specially concurring:

I agree with the majority that the petitioner's application foradmission to the bar of this state must be denied. I write separatelyto explain more fully the basis for my agreement with thatdetermination and to respond to Justice McMorrow's dissent inthis case.

As the majority recounts, the petitioner, while a licensedinsurance professional, took part in an extensive scheme tosystematically defraud insurance companies. The petitioner tooka job in the office of a person who owned taxi cabs. Whenever adriver was involved in an accident, the petitioner would have theperson go to a particular doctor. The doctor would later send outinflated bills containing charges for unnecessary or unperformedservices. The petitioner would then submit the bills to insurancecompanies for reimbursement. This activity went on from August1986 through February 1987; according to the petitioner, hesubmitted scores of fraudulent claims to eight different insurers.Indicted the next year, the petitioner was later allowed to pleadguilty to one count of the 82-count indictment in exchange for histestimony as a witness for the prosecution.

Justice McMorrow asserts that the effect of today's decisiondenying the petitioner's application for admission to the bar "is toimpose additional punishment upon him after he has been triedand served the sentence which was deemed appropriate byagreement of the court and the prosecution in his criminal case."Slip op. at 21 (McMorrow, J., concurring in part and dissenting inpart). Justice McMorrow apparently believes that the seriousnessof an applicant's offense must necessarily fade over time, and that,in any event, the severity of the misconduct should be measuredsimply by the criminal sanction imposed at the time ofprosecution.

These notions are contrary to long-standing precedent of thiscourt. In In re Childress, 138 Ill. 2d 87 (1990), an applicant whohad been convicted of rape and robbery 16 years earlier applied foradmission to the bar of this state, long after his release fromprison. The court observed that a felony conviction will notautomatically preclude an applicant's admission to the bar, or adisbarred attorney's subsequent reinstatement. The court furtherexplained:

"It is clear, however, that the degree of rehabilitation thatmust be established to warrant admission or reinstatementwill depend in large measure on the nature of the wrongcommitted. Just as a disbarred attorney's subsequentexemplary behavior will not mitigate the seriousness ofhis misconduct (In re Alexander (1989), 128 Ill. 2d 524,534-35; In re Berkley (1983), 96 Ill. 2d 404, 410), so toowill an applicant's subsequent exemplary behavior fail tolessen the enormity of an earlier offense." Childress, 138Ill. 2d at 101.

Despite the lengthy period of time in that case between thepetitioner's offenses and his application, this court concluded thattime alone was not sufficient to overcome the enormity of theapplicant's misconduct. The court stated, "While a person'sconduct in the ensuing years is, of course, a relevant circumstancein assessing rehabilitation, we do not believe that the passage oftime by itself is sufficient to demonstrate the rehabilitation that isrequired of someone with a criminal record such as petitioner's."Childress, 138 Ill. 2d at 102.

A number of considerations are relevant in this case. Thepetitioner was involved in an extensive, fraudulent scheme, and heplayed an active role in the commission of those offenses,Moreover, the petitioner was 45 years old at the time of hisinvolvement; thus, his offenses were not youthful indiscretions,but the work of a mature adult, and they were closely related towhat was then his career in insurance. Also, the petitioner, whoapplied to and was accepted by his law school after these offenses,was not completely candid to the school about this misconductand, separately, failed to report on his law school application threeprior misdemeanor charges, two of which resulted in guilty pleas.Just as there are some offenses so egregious that a lawyer who hasbeen disbarred for committing them may never be readmitted tothe bar (In re Richman, 191 Ill. 2d 238, 247-48 (2000); In reRothenberg, 108 Ill. 2d 313, 326 (1985)), so too, I believe, arethere offenses so serious that one who has committed them shouldnever be entitled to admission to the bar in the first place. Withoutdetermining whether the present offenses fall into that category, Ibelieve that it is clear that the petitioner's application must bedenied. The nature and gravity of the petitioner's misconduct, hisage when he engaged in it, and his later lack of candor concerningthese and prior offenses on his law school application and in theensuing application process all militate against his admission tothe bar.

JUSTICE McMORROW, concurring in part and dissenting inpart:

I am in agreement with the majority that the evidence relatingto the post-hearing events involving petitioner Jerome Krule anda foreign student was inappropriately admitted and should nothave affected the ultimate decision of the Committee on Characterand Fitness (Committee). I respectfully dissent, however, from themajority's denial of petitioner's application for admission to thebar.

Initially, I recognize that the privilege to practice law isexactly that, a privilege and not a right. However, that privilegeshould not be denied absent cogent reason. Although, in reviewingthe merits of petitioner's application for admission to the bar, mycolleagues note the many positive aspects of his application, theynevertheless find that "[a]s impressive as Krule's characterreferences and public service may be, an applicant's subsequentexemplary behavior cannot lessen the enormity of an earlieroffense." Slip op. at 9. After stating that petitioner's involvementin the insurance scheme is "precisely the sort of conduct which hasbrought the legal profession into disrepute," the majorityconcludes that Krule "failed to convince the Committee that he isnot going to repeat that conduct, and he has failed to persuade us.In our view, Krule's admission would deprecate the seriousness ofhis crime and undermine the integrity of our profession." Slip op.at 10.

As I studied and pondered the majority opinion, one lingeringquestion always remained: What more could petitioner have donethat he did not already do to enable him to be allowed the privilegeto practice law? Stated otherwise, is there anything petitionerfailed to do to justify refusing him a license to practice law. Themajority does not answer this essential question. Instead, indenying Krule's admission application, my colleagues appear tosingle-mindedly focus upon the seriousness of petitioner's pastoffense, to the virtual exclusion of the ample amount of positiveevidence presented in petitioner's favor during the Committeehearing.

The analysis employed by the majority in assessing the meritsof petitioner's admission petition does not adhere to this court'sprior pronouncements with respect to evaluating whether anindividual has shown sufficient rehabilitation of character andfitness so that an application for admission to the bar may begranted. It is well settled that, although the nature of an applicant'spast misconduct is one important consideration in assessing his orher rehabilitation, a record of felony conviction need not by itselfautomatically preclude one's admission to practice law in Illinois.In re Childress, 138 Ill. 2d 87, 100-01 (1990); In re Loss, 119 Ill.2d 186, 196 (1987); In re Mitan, 75 Ill. 2d 118, 126 (1979).Additional factors to be considered in determining a petitioner'srehabilitation are the petitioner's record of community service andachievements, as well as the opinions of others with respect topetitioner's present character; the candor of petitioner before thecourt; petitioner's age at the time of the offenses; the amount oftime which has passed since the last offense; and the currentmental state of petitioner. Childress, 138 Ill. 2d at 100; Loss, 119Ill. 2d at 196.

Both the Committee in its findings, and the majority in itsopinion, stress that although Krule presented a substantial amountof evidence in his favor during the hearing, this evidence did notovercome his 1988 felony conviction. There is no question thatpetitioner committed a serious offense and that he was a matureadult when he engaged in this misconduct. However, theseriousness of petitioner's crime has already been adjudicated. Therecord reveals that, as part of an agreement with the prosecutingoffice, petitioner pled guilty to one count of theft, in exchange forhis assistance in investigating the insurance scheme and for histestimony on behalf of the government against other schemeparticipants. At the culmination of the criminal proceedings, thetrial court evaluated petitioner's offense and sentenced him to 30months' probation, conditioned upon his performance of 950hours of community service. The record also reveals that the courtreleased petitioner early from his probation.

It is axiomatic that the seriousness of petitioner's crimeremains constant. It does not diminish with the passage of time. Itis precisely because the gravity of the offense will be the same 10,15, or 20 years henceforth-and forevermore-that this court haslooked to factors in addition to the seriousness of the crimecommitted to determine whether an applicant has been sufficientlyrehabilitated to be admitted to the practice of law. In other words,we must consider the seriousness of petitioner's offense againstthe backdrop of the various indicia of rehabilitation of characterand fitness. The egregious conduct of petitioner, though deservingof considerable weight, should not be the overriding factor inassessing petitioner's fitness to practice law. The majority clearlyprimarily bases its decision on the crime petitioner committedmore than 10 years ago.

As stated, this court has previously held that a petitioner'scommunity service and achievements, the opinions of othersregarding his present character, petitioner's candor about his pastmisconduct, and his present mental state all constitute importantindicia of rehabilitation. A wealth of information with respect tothese factors was introduced by petitioner during the hearing. Itwas established that since 1995, petitioner has performedextensive volunteer work with the Evanston Community DefenderOffice (ECDO), which provides free legal and social work servicesto low income Evanston residents under the age of 21. Robert Roy,the director of ECDO, and Judge Fe Fernandez, a former staffattorney with this organization, testified on petitioner's behalf.Both witnesses informed the Committee that, at the time petitionerapproached them about volunteering with their organization, hewas very open about his background. In Roy's words, petitionerspoke with "agonizing candor" about his past difficulties. BothRoy and Fernandez stated that petitioner acknowledged that hemade serious mistakes in his past, that his involvement with theinsurance scheme was wrong, and that he showed a great deal ofremorse for his past misconduct. Roy testified that there was noquestion in his mind that petitioner accepted full responsibility forhis past criminal behavior. Roy informed the Committee that hefrequently discussed ethical issues with petitioner, and that heoften provided petitioner with written materials concerning ethicsin the law.

Both Roy and Fernandez testified that petitioner performed awide variety of legal and nonlegal tasks while volunteering atECDO, including answering telephones, transporting witnesses toand from court, interviewing clients for background information,serving subpoenas, conducting factual investigations, andperforming some legal research. Both witnesses testified thatpetitioner did a very good job in completing all tasks assigned tohim, that he showed genuine concern and compassion for theclients, that he communicated well with the clients, and that theclients had many positive things to say about petitioner. Fernandeztestified that petitioner would make an "excellent" lawyer, andRoy stressed that petitioner took his work very seriously and hadbeen "very responsible." Both witnesses characterized petitioneras honest and trustworthy, and both recommended him for the barwithout hesitancy or reservation.

During the hearing it was also established that for the pastseveral years petitioner served as a volunteer tutor for adultliteracy and education at both Oakton Community College and atthe East Prairie School District in Skokie. Marilyn Antonik andPatricia McCarthy, the supervisors of these respective programs,testified that petitioner interacted very well with the students, whocome from many different cultural backgrounds. Both witnessesattested to petitioner's dedication to his students, with McCarthydescribing petitioner as "very supportive, and concerned andcaring," and with Antonik testifying that petitioner "has gone waybeyond what a tutor needs to do." Both witnesses stated thatpetitioner has generously devoted his time to these programs, anddescribed him as "trustworthy," "sincere" and "committed."Antonik expressed the "utmost confidence" in petitioner, testifiedthat he conducted himself in a "professional" manner, and drew adistinction between petitioner's sincere commitment to hisstudents and that of other volunteers who were required to docommunity service and who simply went "through the motions."

Also testifying on behalf of petitioner was Ralph Ruebner, aprofessor at John Marshall Law School. Professor Ruebner statedthat he became acquainted with petitioner as a result of their livingin the same neighborhood, and when petitioner began attendingJohn Marshall, they struck up a friendship. Professor Ruebnertestified that petitioner candidly revealed to him his pastdifficulties, and that Ruebner recommended that petitionervolunteer at ECDO because he felt it would "contribute to hisrehabilitation process." Professor Ruebner, a highly respectedmember of the legal community, expressed his belief thatpetitioner has "fully rehabilitated himself," explaining that he hasobserved significant changes in petitioner's behavior over the pastyears. Professor Ruebner stated that petitioner has "matured," tothe extent that he is very humble and expresses remorse andresponsibility for his past wrongdoing. Professor Ruebner alsotestified that petitioner is a very caring individual, as evidenced bythe type of community work he has done, as well as by the factthat petitioner is the primary care giver for two very ill, elderlyparents. Professor Ruebner concluded that petitioner would makea competent and trustworthy lawyer.

Attorney Elmer Gertz also testified on petitioner's behalf.Gertz related that petitioner had been one of his students at JohnMarshall Law School and also that petitioner was a family friend.In Gertz's view, petitioner would be an ethical and trustworthylawyer. Gertz also testified that, because of petitioner's adverseexperiences in the past, petitioner would be keenly aware ofethical problems and would know what situations to avoid.

The final witness for petitioner was Edward O'Reilly, asergeant with the Chicago police department and a fellowclassmate of petitioner at John Marshall. Sergeant O'Reillytestified that petitioner was supportive of him during law school,and described petitioner as a "good human being" who is "kind,""trustworthy," "reliable," and "honest." O'Reilly informed theCommittee that, during law school, petitioner candidly disclosedhis background to him, and at that time petitioner was embarrassedand sorry for his past misconduct. O'Reilly stated that petitionerwould be "an asset" to the bar, and that petitioner's pastexperiences "would be a positive influence on his practicing law."In O'Reilly's opinion, petitioner is "fully rehabilitated," and hewould conduct himself in a law-abiding and ethical manner.O'Reilly concluded that although he always had a high opinion ofpetitioner, that opinion has been further increased by petitioner'sextensive volunteer community work.

Petitioner also testified during the hearing. Petitioner statedthat if he were to attain a law license, he would treat it "[a]s if itwere gold." On several occasions during his testimony, petitionerexpressed remorse for his past misconduct. Petitioner testified thathe has "moved in every possible direction to correct that type ofbehavior and to make sure that it won't happen again." Accordingto petitioner, his motivation for cooperating with the authoritiesduring the insurance scheme prosecution was to "try and correctsome of the harm that I did and put an end to it also." Petitionerrevealed that he testified in the criminal case involving otherdefendants who had participated in the insurance scheme, eventhough he had received death threats, and even though hisagreement with the prosecution did not require him to do so.Petitioner also stated that by performing his present volunteercommunity service, "I've tried to correct what I did or do what Ican to correct what I did." Although petitioner stated that herealized that he cannot "erase" his past misconduct, he testifiedthat "I can do everything in my power to change myself, which Ihave tried to do, tried to grow and develop in another directiontotally, and I'm very sorry for what I did." Petitioner also candidlyadmitted to the Committee that he played a "major role" in theinsurance scheme, and acknowledged that he used his "insuranceexperience" in furtherance of that scheme. Petitioner testified thatif he is ever able to practice law, his desire is to practice in thepublic sector, perhaps even as an attorney with ECDO.

Also submitted in support of petitioner's application foradmission were several affidavits attesting to his rehabilitation andfitness. Judge George Leighton, formerly of the United Statesdistrict court and a past commissioner and chairman of theCommittee on Character and Fitness, stated that he becameacquainted with petitioner when petitioner was a student at JohnMarshall. Judge Leighton averred that petitioner is a fit applicantfor admission to the bar and stressed that he does "not make thisstatement lightly." Judge Leighton stated that petitioner hasconducted himself in an "outstanding fashion," and hecommended petitioner for his dedication to his volunteer work andhis willingness to assist those less fortunate. Judge Leightonconcluded by stating that petitioner has shown a "true desire to bea productive contributing member of society" and that his conduct"demonstrates that he has been totally rehabilitated."

Also submitting affidavits on petitioner's behalf were severalfaculty members of John Marshall Law School. Robert Johnston,the dean of John Marshall, averred that prior to petitioner'sacceptance at the school, then-Dean Helen Thatcher interviewedpetitioner and reviewed the circumstance of his conviction. DeanJohnston stated that, based upon conversations with John Marshallfaculty and staff, petitioner was open and candid with Thatcherabout the circumstances of his conviction. Dean Johnston furtherstated that while a student at John Marshall, petitioner conductedhimself in an ethical manner and "accepted responsibility for hisconviction." Dean Johnston believes that petitioner understandsthe ethical obligations of the legal profession and will abide bythem. Professor William Carroll averred that he becameacquainted with petitioner while he was a student in three of hisclasses. Citing petitioner's extensive volunteer work on behalf ofindigent individuals, Professor Carroll concluded that petitionerhas "conducted himself in an exemplary fashion and hasdemonstrated his rehabilitation."

In sum, several highly regarded members of the legalcommunity offered evidence in support of petitioner's applicationfor admission to the bar. The import of this uncontrovertedevidence is that petitioner is a trustworthy and honest individual,that he has been candid about his past misconduct, that he acceptsresponsibility for his part in the insurance scheme, that he hasexpressed remorse, and that, based upon his performance andservice to the community in the more than a decade that hasfollowed his conviction, his admission to the bar should beapproved. Indeed, both the Committee in its findings, and mycolleagues in their opinion, acknowledge that petitioner hasperformed "a good amount of community service" since 1995, andthat he assembled an "impressive" group of character witnesseswho attested to his rehabilitation, remorse for his past conduct, andhis fitness to practice law. Inexplicably, however, both theCommittee and the majority discount the value of thisuncontradicted evidence, and instead resort to mere speculationand unsupported conclusions as the basis for denying petitioner'sapplication for admission to the bar.

Indeed, this court has recently spoken against relying onspeculation in the context of attorney fitness matters. In In reEckberg, 192 Ill. 2d 70 (2000), we held that imposition ofconditions upon an attorney's continued practice of law, based onincapacity, was not warranted. We rejected the recommendationof the Review Board that, based upon the attorney's past mentalhealth problems, he only be allowed to practice law on thecondition, inter alia, that he continue in the course of regularmental health treatment to avert a relapse. We held that "[i]t wouldbe too speculative for this court to conclude that, in the future,respondent will experience mental difficulties which willincapacitate him from continuing to practice law." Eckberg, 192Ill. 2d at 89-90. Although the context of the case at bar issomewhat different from that in Eckberg, this rationale applieswith equal force here, and establishes that the majority's relianceupon speculation is inappropriate.

For example, despite the extensive amount of evidenceintroduced with respect to the scope, extent and beneficial valueof petitioner's volunteer work, the majority accepts theCommittee's unsupported conclusion that "the circumstancespresent when the insurance fraud scheme was formulated back inthe 1980s provided a better insight into how Krule might performas a lawyer." Slip op. at 8. The majority draws a similarlyunsupported and hypothetical conclusion when it writes thatpetitioner's "criminal scheme arose in the context ofcircumstances comparable to those with which he would be facedas an attorney, evincing an inability on Krule's part to carry out hisprofessional responsibilities honestly." Slip op. at 9. There is nobasis in the record from which the majority may validly rely uponin such speculation.

Additional unsupported and speculative conclusions areaccepted by the majority with respect to the motivation andsincerity of petitioner's candor in acknowledging responsibility forhis part in the insurance scheme, as well as petitioner's remorsefor his past misconduct. Completely discounting the veracity ofpetitioner's testimony, my colleagues not only accept that the"Committee believed that [petitioner's] words and actions mayhave been designed simply to satisfy the requirements of baradmission, " but also accept that "to the extent [petitioner] wasremorseful, the Committee believed that it may have been remorsethat his conduct interfered with his bar admission rather than agenuine appreciation for how his illegal conduct affected others."Slip op. at 8. Again, there is no basis in this record from which themajority can reject the evidence presented during the hearing andspeculate with respect to petitioner's motives.

Finally, the majority also accepts the Committee's conclusionthat petitioner's work "did not entail the kind of independence orthe exercise of judgment that would permit a prediction about how[he] would perform in a setting that did." Slip op. at 8. It appears,however, that the Committee and the majority would requirepetitioner to perform the impossible: to present a record of"exercise of judgment" in a legal setting, comparable to that of anattorney, when petitioner cannot validly engage in such conduct.During his testimony, the Committee inquired of Robert Roywhether petitioner, while performing volunteer work at ECDO,had occasion to make "serious judgment calls." Roy replied thatpetitioner faced a dilemma, and explained that there is "a fine linethere, because when you start talking about serious judgment calls,what you're talking about is exercising discretion in the practiceof law, and I never wanted to put [petitioner] in the position ofdoing that." Roy further testified that in an effort to remedy thisdilemma, he advised petitioner to apply for a Rule 711 license, sothat petitioner could perform limited legal services under hissupervision. Roy testified that after this application was rejected,he was very mindful not to place petitioner in the position wherehis actions could be construed as the unauthorized practice of law.

The decision of the majority to deny petitioner's application,despite the fact that the record contains substantial, uncontradictedevidence of petitioner's rehabilitation and present good moralcharacter and fitness to practice law, leads me to the conclusionthat, in this case, the majority has determined that regardless of theamount of positive evidence presented in petitioner's favor, thenature of petitioner's offense automatically precludes hisadmission to the bar.

The clear and unmistakable effect of denying this petitionerthe opportunity to sit for the bar examination is to imposeadditional punishment upon him after he has been tried and servedthe sentence which was deemed appropriate by agreement of thecourt and the prosecution in his criminal case. What Justice Heiplesaid in his dissenting opinion in People v. Malchow, No. 88228(September 21, 2000), rings true here. Although Malchowpresented facts and issues different from the matter at bar, JusticeHeiple's thoughts are equally applicable here: "What matters isthat the State has already had its opportunity to impose whatevermeasure of retribution against defendant the criminal law allows.Once an offender has served his sentence, the punishment muststop." Malchow, slip op. at 15-16 (Heiple, J., dissenting). In thecase at bar, the punishment has not stopped, but continues. Onewonders whether, because of the emphasis the majority places onthe seriousness of his crime many years after petitioner served thesentence given him, many years after petitioner expressed remorse,and after many years of performing satisfactorily his work in thelegal arena, petitioner will ever be allowed the opportunity toobtain a license to practice law.

For these reasons, I dissent from the denial of petitioner'sapplication for admission to the bar.

1. ¹There is no indication in the record that Judge Fe was subpoenaed.He appears to have given testimony on Krule's behalf voluntarily. If thatis so, we feel constrained to point out Judge Fe's decision to supportKrule at his hearing may violate canon 2(B) of the Code of JudicialConduct (155 Ill. 2d R. 62(B)), which expressly states that "a judgeshould not testify voluntarily as a character witness."