                                2013 IL 115767

                             IN THE
                        SUPREME COURT
                               OF
                      THE STATE OF ILLINOIS


                      (Docket No. 115767)
     In re THEODORE GEORGE KARAVIDAS, Attorney-Respondent.

                      Opinion filed November 15, 2013.

        CHIEF JUSTICE GARMAN delivered the judgment of the court,
     with opinion.
        Justices Freeman, Kilbride, Burke, and Theis concurred in the
     judgment and opinion.
        Justice Thomas dissented, with opinion, joined by Justice
     Karmeier.



                                   OPINION

¶1       The Administrator of the Attorney Registration and Disciplinary
     Commission (ARDC) filed a one-count complaint against respondent,
     Theodore George Karavidas, charging him with various violations of
     the Illinois Rules of Professional Conduct. The Hearing Board found
     that he breached his fiduciary duty to the beneficiaries of his father’s
     estate by converting funds from the estate and recommended that he
     be suspended for four months. The Review Board reversed and
     recommended that the charges be dismissed. The Administrator filed
     a petition for leave to file exceptions pursuant to Supreme Court Rule
     753(e) (Ill. S. Ct. R. 753(e) (eff. Sept. 1, 2006)), which this court
     allowed.
¶2                               BACKGROUND
¶3       Respondent was admitted to practice law in Illinois in 1979 and
     thereafter worked for the City of Chicago, the Attorney General, and
     several law firms. In 1988, he opened his own practice, focusing on
     personal injury law. He has no record of previous disciplinary actions
     and no professional experience in matters of probate or trusts.
¶4       Attorney John Hayes, who specialized in estate and probate
     matters, prepared a will and trust documents for respondent’s father,
     George Karavidas. The elder Karavidas executed the documents on
     February 17, 2000, and died later that day. Respondent was named in
     the will to be executor of his father’s estate and in the trust documents
     to be successor trustee. Respondent retained Hayes and his law firm,
     Pedersen & Houpt, to represent him as executor. Hayes filed a
     petition to probate the estate on April 11, 2000.
¶5       The will provided for George’s personal property to be given to
     his wife, Lillian, and directed that the remainder of the estate pour
     over into the unfunded trust. The will also authorized independent
     administration of the estate, meaning that the executor was allowed
     to take actions with regard to the estate without court approval. See
     755 ILCS 5/28-1 (West 2000). The probate estate was valued at
     approximately $700,000 and included investment accounts with
     PaineWebber and Harris Investors. In addition, the estate included an
     interest in a family business called Marie’s Pizza and Liquors
     (Marie’s).
¶6       The trust documents provided that upon George’s death and the
     resulting transfer of estate assets to the trust, the successor trustee was
     to create two separate trusts. A family trust was to be funded first, in
     an amount equal to the maximum federal estate tax exemption (then
     $675,000); the remaining assets were to be placed in a marital trust
     for Lillian’s benefit. Upon exhaustion of the funds in the marital trust,
     the principal of the family trust was to be used for Lillian’s health and
     support. In addition, the trustee was given the authority to distribute
     family trust assets to George’s descendants, a group consisting of
     respondent and his sister, Nadine, provided that the distributions were
     for the beneficiary’s health, support, or education. When making
     distributions from the family trust, the trustee was instructed to “give
     primary consideration” to Lillian’s needs. Upon Lillian’s death, any
     remaining assets of the family trust were to be distributed in equal
     shares to respondent and Nadine, without regard to any distributions
     made to them earlier. However, the trust document also gave Lillian

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       a testamentary power of appointment, under which she could appoint
       “any one or more” of George’s descendants and their spouses to take
       the principal of the family trust upon her death. Thus, it was not
       certain that either respondent or his sister would ever receive any
       funds from this trust.
¶7         Respondent did not transfer any estate assets to the existing trust
       or create the family and marital trusts. On August 9, 2000, he
       withdrew $50,000 from one of the investment accounts for his own
       use. In addition, between August 2, 2000, and July 1, 2005,
       respondent made multiple withdrawals totaling $398,104 from
       another investment account for his own use. Between February 1,
       2001, and October 17, 2005, he deposited $349,604 of his own funds
       into the same account. He also made payments of his own funds
       directly to Marie’s, his mother, and his sister. The largest deficit of
       estate funds due to these transactions at any time was $152,104,
       which was less than one-third of the amount of the entire estate. The
       Administrator does not allege that any further restitution is owed to
       the estate.
¶8         Respondent also used estate funds to purchase a new Mercedes
       automobile for Lillian, to pay her health insurance premiums and her
       real estate taxes, to make contributions to Nadine’s Individual
       Retirement Account (IRA) and to his wife’s IRA, to pay a portion of
       the real estate taxes on the building that housed Marie’s, and to pay
       Nadine’s personal income taxes. At the request of Nadine, who
       operated Marie’s, he made advances from the estate of $339,247 to
       keep Marie’s in business. He also paid approximately $20,000
       directly to Nadine.
¶9         In 2006, Nadine learned that respondent had attempted to sell
       Marie’s without her or her mother’s knowledge. She retained an
       attorney to represent herself and Lillian, and he filed an appearance
       in the probate case seeking to terminate independent administration.
       The petition alleged, among other things, that respondent had not
       circulated an inventory of the assets of the estate or an account of his
       administration. Later, Lillian and Nadine sought to have respondent
       removed as executor. Thereafter, the probate court terminated
       respondent’s independent administration of his father’s estate, and he
       resigned as executor. Nadine became executor of the estate.
¶ 10       On December 30, 2009, the Administrator filed a one-count
       complaint against respondent, alleging that he engaged in: (1)
       conversion of assets entrusted to him as executor of his father’s

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       estate; (2) breach of fiduciary obligations owed to the beneficiaries of
       the estate; (3) conduct involving dishonesty, fraud, deceit, or
       misrepresentation, in violation of Rule 8.4(a)(4) (Ill. R. Prof. Conduct
       R. 8.4(a)(4) (eff. July 6, 2001)); (4) conduct that is prejudicial to the
       administration of justice, in violation of Rule 8.4.(a)(5) (Ill. R. Prof.
       Conduct R. 8.4(a)(5) (eff. July 6, 2001)); and (5) conduct which tends
       to defeat the administration of justice or to bring the courts or the
       legal profession into disrepute, in violation of Supreme Court Rule
       770 (Ill. S. Ct. R. 770 (eff. Apr. 1, 2004)).
¶ 11       At the hearing, the Administrator called five witnesses, including
       Lillian and Nadine. Respondent called four witnesses and testified on
       his own behalf.
¶ 12       Hayes testified that he prepared the will and trust documents and
       that no assets were placed in the trust prior to George’s death. He
       summarized the terms of the will and trust and explained that the
       family trust would have to be funded before the estate could be
       closed. If no funds remained after fully funding the family trust, the
       marital trust would not be funded. As attorney for the estate, he
       received copies of the monthly statements of the investment accounts.
       The executor of the estate had the authority to act on behalf of the
       estate with regard to these accounts. Hayes was not aware of the loans
       to respondent when they occurred, but became aware of them when
       he prepared an accounting of the estate in response to Nadine’s
       motion in the probate case. By that time, all of the loans had been
       repaid by respondent. The repayments did not include interest on the
       amounts borrowed.
¶ 13       Hayes was aware of payments made by respondent on behalf of
       his mother and sister, but was not aware of any notice to them
       regarding any loans or payments of estate funds. He also knew of
       payments made to fund repairs and operating expenses for Marie’s,
       which was losing money, had overdrafts on its checking accounts,
       and had ceased paying rent. Respondent’s transfers for Marie’s
       totaled $339,236.50. Hayes was also aware that respondent had asked
       one of Hayes’s law partners to draft a sales agreement because he
       intended to sell the business to its manager. Hayes ceased
       representing the estate when respondent withdrew as executor and
       was replaced by his sister.
¶ 14       Attorney Theodore Rodes, Jr., who specializes in estate planning
       and trusts, was called as an opinion witness. After reviewing the will
       and trust documents, he concluded that neither the documents nor the

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       Illinois Probate Act authorized the respondent to make loans from the
       estate to himself. As independent executor, respondent was allowed
       to take appropriate actions with regard to the estate without court
       approval. However, as a fiduciary, he had a duty of loyalty, a duty to
       avoid self-dealing, and a duty to protect the interests of the
       beneficiaries. The duty to avoid self-dealing prohibits one from
       placing oneself on both sides of a transaction, such as lender and
       borrower. Rodes believed that these duties should have been clear to
       the respondent. Absent specific authority in the documents, the loans
       would have been proper only if authorized by court order or if the
       beneficiaries had agreed.
¶ 15        Rodes further opined that respondent violated his duties as
       executor when he made payments on behalf of his mother and sister.
       Under the will, he was directed to distribute his father’s personal
       property to Lillian, which he did, and then to turn over the residue of
       the estate to the trust, which he failed to do. Any authority that the
       trustee might have had to make distributions to himself and his
       mother and sister did not exist under the terms of the will. Even if
       respondent had funded the trust, the trust document did not authorize
       self-dealing by way of loans.
¶ 16        Although he characterized respondent’s conduct as “dishonest,”
       Rodes stated that he saw nothing in the records that suggested
       respondent was aware that his conduct was improper or that he
       attempted to conceal the transactions. Rodes also acknowledged that
       respondent repaid the amounts, but stated that repayment did not
       absolve him of the breach of duty.
¶ 17        Nadine testified that she had never seen the will or trust
       documents, but that she understood that her brother was the executor.
       She expected him to protect the estate and “make it grow.” She
       understood that she, her mother, and her brother were the
       beneficiaries of the estate. She did not know that her brother was
       making loans to himself and would have objected if he had asked her
       permission. She was aware that her brother used money from the
       estate to buy their mother a new car, to make contributions to her
       IRA, and to pay some of the real estate taxes on the building that
       housed Marie’s. She had no objection to these expenditures of estate
       funds. On the occasions when respondent paid her personal income
       taxes, she gave permission for him to use estate funds. She did not
       know if he used estate funds to pay his own taxes. She acknowledged
       that when Marie’s was experiencing shortfalls and overdrafts, she


                                        -5-
       asked respondent to fix the problem but did not know how he did it.
       She assumed he used money from the estate. Nadine’s hiring of an
       attorney and filing of a petition to terminate independent
       administration was prompted by her discovery that respondent was
       negotiating to sell Marie’s.
¶ 18        Lillian stated that respondent had informed her that he had taken
       money from the estate, but he did not ask her permission to do so.
       She did not tell Nadine that respondent had taken any money. She
       also denied that respondent had used estate funds to keep Marie’s in
       business.
¶ 19        Respondent stated that he had previously handled client funds and
       he understood his duty as a fiduciary to segregate client funds from
       his own property. He acknowledged that he used estate funds for his
       own purposes, explaining that he believed that he was authorized to
       do so as a beneficiary. Although he believed that he would have been
       allowed to retain the funds, he chose to treat the withdrawals as loans
       and to repay the estate. He testified that the attorney, Hayes, told him
       that under independent administration, an executor could take
       whatever actions he was authorized to take and make an accounting
       when the estate was closed. He stated that Hayes did not tell him he
       first needed to fund the trusts before he could take the actions he was
       taking. He was unaware that there was any issue with the loans until
       he received a letter from the ARDC. He denied any intent to convert
       estate funds.
¶ 20        Chris Atsaves, vice president of investments at UBS Financial
       Services, testified that he managed the account into which respondent
       transferred the estate assets. He was familiar with the history of
       transactions, including respondent’s loans to himself and transfers to
       Marie’s. He understood that the funds advanced to Marie’s would be
       repaid to the estate from the proceeds of the eventual sale of the
       business. While respondent did not sign notes or specify interest rates
       or terms of repayment when he transferred money to his personal or
       law office accounts, Atsaves understood that these transfers were
       personal loans. Respondent repaid these amounts. His first repayment
       was several thousand dollars greater than the amount owed, and
       Atsaves deemed the overage to represent interest on the loan.
       Subsequent repayments did not include interest amounts because
       respondent considered the interest offset by the approximately
       $100,000 in unpaid rent owed to him as a part owner of the building
       occupied by Marie’s. Atsaves was also aware that respondent used


                                         -6-
       estate funds to open IRAs for himself, his wife, and Nadine; he repaid
       the funds used for his own IRA and his wife’s, but not for Nadine’s.
¶ 21       Anthony Siragusa, another financial professional, testified that he
       had known respondent for 50 years and that he was named in
       respondent’s will to be executor of his estate. Respondent kept him
       informed of his actions with regard to his father’s estate. Siragusa was
       aware that respondent was using estate funds to keep Marie’s afloat
       and that he was trying to sell the business as a going concern. Nadine
       opposed any sale. Siragusa was also aware that respondent was
       borrowing funds from the estate for his own use. Respondent kept
       him informed so that if something happened to respondent, Siragusa
       would make sure that a full accounting was made and any outstanding
       debt repaid. Although he acknowledged that he had no information
       on the terms or interest rates of the loans and that he did not hold a
       promissory note, he was confident that he would have been able, if
       necessary, to reconstruct the transactions.
¶ 22       The Hearing Board found that the will was the controlling
       instrument, because the trust was never funded. Further, under the
       will, respondent had no authority to lend money to himself. Even if
       the trust had been funded, the terms of the trust did not authorize such
       loans and, although respondent was authorized to distribute trust
       funds to himself for certain specified purposes, he did not properly
       document the transactions. The absence of promissory notes caused
       the Hearing Board to “question” respondent’s characterization of the
       transactions as loans. Respondent, an attorney, did not seek
       clarification of his responsibilities from Hayes, the attorney for the
       estate. Further, his self-dealing was not excused by the fact that he
       used estate funds to benefit his mother and sister, or by the fact that
       he repaid the funds he borrowed. Thus, the Hearing Board concluded
       that respondent breached his fiduciary duty to the estate and its
       beneficiaries.
¶ 23       The Hearing Board also found that because respondent had no
       authority under either the will or the Probate Act to lend funds to
       himself, he committed conversion when he took funds from the
       estate. The Board concluded that because respondent failed “to follow
       correct procedures, which failure eventually became the subject of
       court proceedings,” his conduct was prejudicial to the administration
       of justice in violation of Rule of Professional Conduct 8.4(a)(5) and
       tended to defeat the administration of justice in violation of Supreme
       Court Rule 770.


                                         -7-
¶ 24       On the issue of dishonesty, the Hearing Board concluded that
       respondent did not intend to deceive or to defraud the estate or its
       beneficiaries. He took no affirmative steps to conceal his actions, and
       he repaid the amounts he borrowed. Indeed, repayment was complete
       more than a year before his actions were reported to the ARDC. He
       was unfamiliar with estate administration and did not appreciate the
       separate roles of the will and trust documents or his separate roles as
       executor and trustee. Thus, the Hearing Board concluded, he did not
       violate Rule of Professional Conduct 8.4(a)(4).
¶ 25       The Hearing Board recommended that respondent be suspended
       from the practice of law for four months.
¶ 26       Both parties appealed to the Review Board. Before the Review
       Board, the Administrator argued that the Hearing Board erred by
       finding that respondent did not violate Rule 8.4(a)(4) and by
       recommending a suspension for four months rather than for one year.
       Respondent argued that the Hearing Board erred by finding that he
       breached his fiduciary duty to the estate and its beneficiaries and by
       finding that his conduct amounted to conversion. In the alternative,
       he argued that the appropriate discipline would be reprimand or
       censure.
¶ 27       The Review Board concluded that in the absence of an attorney-
       client relationship between respondent and the estate or its
       beneficiaries, the charges of breach of fiduciary duty and conversion
       could not serve as the basis for professional discipline in this case.
¶ 28       As a general matter, the Review Board discouraged the
       Administrator’s use of breach of fiduciary duty as a free-standing
       charge, absent an allegation of violation of a specific Rule of
       Professional Conduct. The Board noted that breach of fiduciary duty
       is not one of the specifically enumerated forms of misconduct in the
       Rules and that as a general concept of tort liability, it encompasses a
       wide variety of behavior, not all of which should be the basis for
       professional discipline. Because the fiduciary duty in this case did not
       arise from an attorney-client relationship and did not violate a specific
       Rule, the Review Board stated that the charge had no basis “in law,”
       that is, in the Rules of Professional Conduct.
¶ 29       Similarly, the Review Board stated that the only Rule of
       Professional Conduct that would specifically encompass conversion
       is Rule 1.15, which provides that “[a] lawyer shall hold property of
       clients or third persons that is in a lawyer’s possession in connection
       with a representation separate from the lawyer’s own property.” Ill.

                                         -8-
       R. Prof. Conduct R. 1.15(a) (eff. Oct. 21, 2009). Again, the Review
       Board concluded that, absent an attorney-client relationship,
       respondent could not have violated this rule because he did not “hold”
       the estate funds for a client or in connection with a representation.
¶ 30       Further, if the tort of conversion, as opposed to a violation of Rule
       1.15, were to be the basis of professional discipline, the Review
       Board stated that the Administrator should be required to prove the
       elements of the tort by clear and convincing evidence, which was not
       done in this case. In re Storment, 203 Ill. 2d 378, 390 (2002) (“In
       attorney disciplinary proceedings, misconduct must be proved by
       clear and convincing evidence.”). The Board criticized the suggestion
       that an attorney could be disciplined for the wrongful deprivation of
       another’s property, without proof of the other elements of the tort. In
       addition, the Board observed, one cannot convert money unless it is
       tangible, such as currency taken from a briefcase or a safe-deposit
       box. For this proposition, the Board cited Sandy Creek Condominium
       Ass’n v. Stolt & Egner, Inc., 267 Ill. App. 3d 291, 294 (1994)
       (“Money may be the subject of conversion if the sum of money is
       capable of being described as a specific chattel. [Citation.] However,
       an action for the conversion of funds may not be maintained to satisfy
       an obligation to pay an indeterminate sum of money. If such is the
       case, the cause of action lies in debt, rather than conversion.”). Sandy
       Creek, in turn, cites this court’s opinion in In re Thebus, 108 Ill. 2d
       255, 260 (1985) (“It is ordinarily held, however, that an action for
       conversion lies only for personal property which is tangible, or at
       least represented by or connected with something tangible***.’ ”
       (quoting 18 Am. Jur. 2d Conversion § 9, at 164 (1965))).
¶ 31       The Board concluded that because the Administrator did not plead
       and prove either a violation of Rule 1.15 or commission of the tort of
       conversion, the charge of conversion could not stand.
¶ 32       In sum, the Review Board reversed the Hearing Board’s decision
       and recommended that the charges against respondent be dismissed
       because the Administrator did not prove by clear and convincing
       evidence that respondent violated the Rules of Professional Conduct
       when he committed the alleged conversion and breach of fiduciary
       duty.

¶ 33                             ANALYSIS
¶ 34     The issues presented in this case are: (1) whether the
       Administrator met the burden of proving by clear and convincing

                                         -9-
       evidence that respondent’s actions with respect to his father’s estate
       constituted a breach of fiduciary duty or conversion; and (2) if so,
       whether his actions are professional misconduct that may be the basis
       for the imposition of professional discipline.
¶ 35       The first question requires us to review the factual findings of the
       Hearing Board under the manifest weight of the evidence standard. In
       re Timpone, 208 Ill. 2d 371, 380 (2004). Respondent argues that he
       did not breach his fiduciary duty or engage in conversion and that, in
       any event, these charges were not proven by clear and convincing
       evidence. The Administrator responds to this argument in its reply
       brief, arguing that the Hearing Board’s findings of facts were correct.
¶ 36       The second question involves interpretation and application of the
       Rules of Professional Conduct, which we review de novo. Id.

¶ 37                     Factual Findings of Hearing Board
¶ 38                          Breach of Fiduciary Duty
¶ 39       The Hearing Board found, and respondent does not deny, that he
       was executor of his father’s estate and, as such, “was in a fiduciary
       position that required him to exercise the highest degree of good faith
       and fidelity toward the estate and toward its beneficiaries, and to
       avoid placing his own interests above those of the estate.”
¶ 40       The Administrator argues that the Hearing Board’s finding of a
       breach of fiduciary duty was correct because respondent “had no
       authority under either his father’s will or Illinois probate law to lend
       estate funds to himself yet he lent himself almost $450,000 over the
       course of five years.”
¶ 41       Respondent argues that because the will provided for independent
       administration of the estate under section 28-1 of the Probate Act of
       1975 (755 ILCS 5/28-1 (West 2010)), he was authorized to act
       without court approval. Further, he asserts that under section 28-10
       of the Act, which provides that “the independent representative may
       at any time or times distribute the estate to the persons entitled
       thereto” (755 ILCS 5/28-10 (West 2010)), he was entitled to make
       loans to himself because he would have been entitled to distribute a
       portion of the estate to himself, without court approval or notice to
       other beneficiaries. Respondent also relies on the language of the trust
       document, which authorized the trustee to “make loans to the
       fiduciary of any trust created by me or any member of my family ***
       even though the trustee is such a fiduciary.” He states that this


                                        -10-
       language gave him the authority to make loans of trust funds to
       himself without notice or approval. Thus, respondent’s argument
       concludes that the Administrator failed to prove a breach of fiduciary
       duty by clear and convincing evidence.
¶ 42       The rules governing the fiduciary duty of an executor are well-
       settled. “[T]he beneficiaries of an estate are intended to benefit from
       the estate and are owed a fiduciary duty by the executor to act with
       due care to protect their interests.” Gagliardo v. Caffrey, 344 Ill. App.
       3d 219, 228 (2003). The executor’s duty is to “carry out the wishes of
       the decedent,” acting in the utmost good faith to protect the interests
       of the beneficiaries, “exercising at the very least that degree of skill
       and diligence any reasonably prudent person would devote to [his]
       own personal affairs.” Will v. Northwestern University, 378 Ill. App.
       3d 280, 291-92 (2007). Ultimately, the executor’s duty is to
       administer the assets of the estate so that any debts or obligations are
       paid and the beneficiaries receive their just and proper benefits “ ‘in
       an orderly and expeditious manner.’ ” Id. (quoting In re Estate of
       Greenberg, 15 Ill. App. 2d 414, 424 (1957)). In addition, an executor
       owes a duty of full disclosure to the beneficiaries under the testator’s
       will. See In re Estate of Talty, 376 Ill. App. 3d 1082, 1089 (2007).
¶ 43       The father’s will named two beneficiaries: his wife, Lillian, and
       the unfunded trust. As executor of his father’s will, respondent was
       required to distribute his father’s personal property to Lillian and to
       transfer all other estate assets to the trust. Then, in his role as trustee,
       he was required to create two separate trusts. He did not transfer the
       residue of the estate to the trust, as evinced by the fact that the checks
       he drew on the account at USB Financial Services continued to list
       the “Estate of George Karavidas” as the account holder. Thus, the
       Hearing Board was correct in concluding that because the assets were
       never transferred to the trust, the will is the controlling instrument
       with respect to the transactions at issue.
¶ 44       We also agree with the Hearing Board that although the will
       authorized independent administration, neither the will itself nor the
       independent administration provision of the Probate Act (755 ILCS
       5/28-1 (West 2010)), authorized respondent, as executor, to make
       loans to himself or to use the estate assets as a line of credit for his
       own benefit. Section 28-1 of the Probate Act permits an executor to
       act on behalf of the estate without court approval; it does not permit
       him to ignore the intent of the testator. The will gave the executor the
       power to borrow money, not to lend it. It allowed the executor to


                                          -11-
       “deal with” himself in his other role as trustee, but not to engage in
       transactions with himself as an individual. The provision allowing
       him to make distributions from the estate permitted such distributions
       only to the named beneficiaries of the will—Lillian and the trust—not
       to the eventual beneficiaries of the trust.
¶ 45       The facts of this case are similar to Prignano v. Prignano, 405 Ill.
       App. 3d 801, 811-12 (2010), where the executor of the estate, who
       was brother of the testator and co-owner of several businesses,
       breached his fiduciary duty to carry out the express provisions of the
       will. The will provided that the executor was to receive his late
       brother’s share of the “assets” of a corporation owned by the brothers.
       In addition to the assets of the business, the executor distributed to
       himself his late brother’s share of the stock in the corporation. The
       appellate court held that shares of stock are not assets of a
       corporation; rather, they are units of ownership in the corporation. As
       such, the stock was part of the residue of the estate, which was to be
       distributed to the testator’s widow and their two minor children.
       Thus, the executor “breached his fiduciary duty as executor to carry
       out the express provisions of the will.” Id. at 811. In addition, because
       the children’s share of the residue was to be placed in trust for them,
       the executor also breached his fiduciary duty as trustee of the
       children’s trusts “to secure for them the property that should have
       formed the res of their trusts.” Id. at 812.
¶ 46       Similarly, in the present case, respondent breached his fiduciary
       duty to carry out the express provisions of the will by failing to
       transfer estate assets to the trust and by lending estate assets to
       himself. Even if such loans had been permissible, his failure to
       document the transactions as loans placed the assets of the estate at
       risk if he were to die or become incompetent before the loans were
       repaid.
¶ 47       Respondent also breached his fiduciary duty by failing to disclose
       the transactions to his mother or sister. In Estate of Talty, the testator
       named as executor his brother, with whom he co-owned an
       automobile dealership and the real estate on which it was located. The
       will named the testator’s wife as the sole residuary beneficiary, giving
       the brother the right to purchase the testator’s share of the dealership,
       subject to certain conditions, including an independent appraisal of
       the value of the dealership. Estate of Talty, 376 Ill. App. 3d at 1084.
       The executor obtained an appraisal that falsely stated the value of the
       dealership and closed the sale to himself. In ensuing litigation, the


                                         -12-
       circuit court found that although the testator “knowingly waived any
       conflict of interest” when he appointed his brother and business co-
       owner as his executor, the executor nevertheless acted in bad faith. Id.
       at 1086. The appellate court affirmed, stating that the testator had
       waived any conflict of interest by placing his brother in “multiple
       capacities as buyer, seller, and fiduciary.” Further, the court observed
       that “an executor can serve potentially conflicting interests without
       exercising bad faith as a fiduciary.” Id. at 1089. However, the
       executor breached his fiduciary duty of full disclosure by failing to
       disclose to the residuary beneficiary information regarding the
       appraisals of the business and the real estate and the closing dates for
       the sales. Id. at 1089-90.
¶ 48       The elder Karavidas named his son as executor and successor
       trustee, knowing that his son was also a beneficiary of the trust. Thus,
       as in Talty, he waived any conflict of interest by placing respondent
       in multiple capacities as executor, trustee, and beneficiary. However,
       such a waiver does not relieve the respondent of an executor’s
       fiduciary duty of full disclosure. The record clearly demonstrates that
       respondent did not inform his mother, who was a beneficiary under
       the will and trust, of his repeated taking of loans from the estate. He
       also failed to disclose the transactions to his sister, who, while not a
       direct beneficiary of the will, was an intended beneficiary of the trust
       that he failed to fund with estate assets.
¶ 49       Respondent argues that his position is supported by the case of In
       re Nagler, M.R. 23644 (May 17, 2010), in which the respondent
       attorney, who drafted a will and trust for his father and served as
       executor of his father’s estate, failed to follow the directions in the
       will. He did not set up separate trusts for himself and his sister as
       instructed, but rather allowed all of the funds to remain in one trust
       account, keeping a mental note of the amount to which each was
       entitled and making sure that he did not distribute more than one half
       of the funds to himself. He also made a loan of trust funds to a friend,
       without informing his sister of the transaction. Although he was
       found to have committed other forms of misconduct, Nagler was not
       found to have breached his fiduciary duty. Respondent argues that his
       conduct was less egregious than the conduct charged in In re Nagler
       and, thus, he should be found not to have breached his fiduciary duty.
¶ 50       The Hearing Board considered and rejected this argument, noting
       the significant distinction between respondent and Nagler. In contrast
       to Nagler, respondent was acting as executor of his father’s estate, not


                                        -13-
       as a trustee. An executor has a duty of full disclosure. Estate of Talty,
       376 Ill. App. 3d at 1089-90. Further, although Nagler failed to
       separate the residuary trust into two separate trusts, he was operating
       under the terms and conditions of his father’s trust document, which
       gave broad discretion to the trustee. In the present case, respondent
       was operating under the terms of his father’s will, which did not
       permit him to make loans to himself.
¶ 51       Although the will was the operative instrument, respondent
       nevertheless relies on the trust document to argue that he was entitled
       to distribute trust assets to himself and that, therefore, he cannot have
       breached his fiduciary duty by taking the same funds directly from the
       probate estate. We reject the implicit suggestion that the funding of
       the trust was a mere formality that could be dispensed with. Further,
       although respondent as trustee did have the authority to make
       distributions of trust funds to himself, that authority was not
       unlimited. During his mother’s lifetime, he was authorized to
       distribute trust funds to himself and his sister only for their “health,
       support and education” and only after consideration of their “other
       resources.” Additionally, as trustee, he was required to give “primary
       consideration” to his mother’s needs. Thus, even if he had funded the
       trust, he was not authorized to use the trust as his personal line of
       credit.
¶ 52       Respondent’s explanation that he at no time owed the estate more
       than one-third of its total original value is not persuasive. Even had
       he carried out his father’s wishes, he was not entitled to one-third of
       the estate. Rather, he would have eventually received one-half of the
       remaining principal in the family trust upon the death of his mother,
       provided that she did not exercise her testamentary power of
       appointment to reduce his share. Indeed, it was entirely possible that
       the care and support of his mother would consume the entire corpus
       of the family trust.
¶ 53       We acknowledge respondent’s assertion that he also made
       payments of estate funds to or on behalf of his mother and sister.
       While these payments do tend to support his claim that he was not
       acting to defraud the estate, but simply did not understand his
       obligations as executor, these transactions do not negate his breach of
       fiduciary duty. Indeed, they, too, were breaches of fiduciary duty
       because they were unauthorized by the will.
¶ 54       Had respondent followed the instructions in his father’s will, the
       estate could have been closed in a timely manner. Instead, he allowed

                                         -14-
       the assets to remain in the probate estate for over five years and
       engaged in numerous undocumented transactions, some of which
       benefitted his mother and sister and some of which benefitted
       himself. He did so without disclosing the transactions to the other
       intended beneficiaries and without their consent. We find, therefore,
       that the Hearing Board’s finding that respondent breached his
       fiduciary duty as executor of his father’s estate was not against the
       manifest weight of the evidence.

¶ 55                                   Conversion
¶ 56       The same conduct that was alleged to constitute a breach of
       fiduciary duty—respondent’s unauthorized taking of estate funds in
       the form of undocumented loans for his personal use—was also
       alleged to constitute conversion. In effect, the respondent was charged
       with breaching his fiduciary duty by means of converting estate funds.
       The Hearing Board concluded that his conduct met the definition of
       conversion.
¶ 57       Respondent argues that he did not engage in conversion because
       he was entitled to use all or part of the estate funds and that his
       mother and sister were not deprived of anything to which they were
       entitled because they had no greater right to the funds than he did. He
       acknowledges that he borrowed the funds from the estate, rather than
       creating the trusts and then disbursing funds to himself as a
       beneficiary of the family trust, but insists that no conversion took
       place when he would have been allowed to use the funds if they had
       been placed in the family trust. He asserts that the Administrator
       failed to prove any of the elements of the common law tort of
       conversion and that the Review Board correctly found that he did not
       convert estate funds.
¶ 58       The Administrator responds that respondent cites no authority for
       his assertion that he was entitled to use the estate funds or that his
       actions, particularly the utter lack of documentation for the loans,
       would have been permitted if the trust had been funded. Thus, his
       taking of the funds, even with subsequent repayment, was conversion.
¶ 59       At common law, conversion is the “wrongful possession or
       disposition of another’s property as if it were one’s own; an act or
       series of acts or willful interference, without lawful justification, with
       an item of property in a manner inconsistent with another’s right,
       whereby that other person is deprived of the use and possession of the
       property.” Black’s Law Dictionary 381 (9th ed. 2009).

                                         -15-
¶ 60       “This court has stated that ‘[a] conversion is any unauthorized act,
       which deprives a man of his property permanently or for an indefinite
       time ***.’ (Union Stock Yard & Transit Co. v. Mallory, Son &
       Zimmerman Co. (1895), 157 Ill. 554, 563. In Bender v. Consolidated
       Mink Ranch, Inc. (1982), 110 Ill. App. 3d 207, 213, the court said,
       ‘The essence of conversion is the wrongful deprivation of one who
       has a right to the immediate possession of the object unlawfully held.’
       In Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App.
       3d 915, 932, it was stated: ‘One claiming conversion must show a
       tortious conversion of the chattel, a right to property in it, and a right
       to immediate possession which is absolute ***.’ In Farns Associates,
       Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, the court said, ‘The
       essence of an action for conversion is the wrongful deprivation of
       property from the person entitled to possession.’ ” Thebus, 108 Ill. 2d
       at 259-60.
¶ 61       In the context of a civil case, “ ‘[t]o prove conversion, a plaintiff
       must establish that (1) he has a right to the property; (2) he has an
       absolute and unconditional right to the immediate possession of the
       property; (3) he made a demand for possession; and (4) the defendant
       wrongfully and without authorization assumed control, dominion, or
       ownership over the property.’ ” Loman v. Freeman, 229 Ill. 2d 104,
       127 (2008) (quoting Cirrincione v. Johnson, 184 Ill. 2d 109, 114
       (1998)).
¶ 62       However, when conversion is charged as a form of professional
       misconduct, it has a more “specialized meaning.” Thebus, 108 Ill. 2d
       at 259. Thus, the general rules as to the elements of the tort may be
       altered to fit the requirements of the Rules of Professional
       Responsibility. See id. at 261. For example, an attorney may be found
       to have committed conversion when the balance in an account in
       which client funds are being held falls below the amount then
       belonging to clients. In re Cheronis, 114 Ill. 2d 527, 534-35 (1986).
       This is true even though no client entitled to the funds has made a
       demand for possession. Thus, in In re Lasica, No. 07-CH-125
       (Review Board Jan. 22, 2010), the Review Board rejected the
       attorney’s argument that demand for possession is a necessary
       element of conversion in a disciplinary proceeding, observing that
       “[a]ttorneys are not free to use funds that they hold on behalf of a
       client or third party until such time as a demand for possession is
       made.”



                                         -16-
¶ 63        In the context of a disciplinary proceeding where an attorney-
       client relationship is involved, we use the term “conversion” as a term
       of art and focus on the attorney’s conduct with respect to the property
       or funds of the client or third party, not on the circumstances that
       would be necessary to give rise to a claim in tort by the rightful
       owner. See In re Rosin, 156 Ill. 2d 202, 206 (1993) (defining
       conversion in the context of a disciplinary proceeding as “any
       unauthorized act, which deprives a man of his property permanently
       or for an indefinite time,” where the property at issue was the client’s
       share of proceeds of a settlement (internal quotation marks omitted)).
       Thus, when an attorney is acting as an attorney, he may be found to
       have converted funds that are held in a trust account holding funds
       owed to numerous clients, even though his misconduct does not fit
       the common law definition of conversion.
¶ 64        As the Review Board correctly noted, respondent’s conduct did
       not violate Rule 1.15(a) because the funds involved were neither
       client funds nor funds held by respondent for a third person “in
       connection with a representation.” Ill. R. Prof. Conduct R. 1.15(a)
       (eff. Oct. 21, 2009). Thus, our term of art does not apply.
¶ 65        This raises the additional consideration that, at common law, not
       all types of property are subject to being converted. See Thebus, 108
       Ill. 2d at 260 (“ ‘It is ordinarily held, however, that an action for
       conversion lies only for personal property which is tangible, or at
       least represented by or connected with something tangible ***.’ ”
       (quoting 18 Am. Jur. 2d Conversion, § 9, at 164 (1965))). Thus, if the
       nonattorney executor of an estate were to help himself to a valuable
       painting or piece of jewelry, he would not only be in breach of his
       fiduciary duty, he would be liable in tort for conversion. However, the
       Review Board observed that the funds that respondent “borrowed”
       from the estate were not “capable of being described as a specific
       chattel” and, thus, were not capable of being converted.
¶ 66        As established above in our discussion of breach of fiduciary
       duty, respondent’s actions were indeed wrongful and without
       authorization. In addition, he deprived the estate and its intended
       beneficiary, the trust, of the funds for an indefinite period of time.
       Because we have already found that respondent’s conduct with
       respect to the estate funds was a breach of fiduciary duty, we need not
       determine whether the means by which the breach was committed
       may also be labeled as common law conversion.



                                        -17-
¶ 67       We briefly address the argument, made for the first time at oral
       argument, that respondent could not have committed conversion of
       funds from the estate or breached his fiduciary duty because the death
       of George Karavidas “funded” the George Karavidas Trust and that
       the trust document allowed the trustee to make loans.
¶ 68       The Administrator rightly points out that this is a change in the
       respondent’s position before the Hearing Board and should not be
       given any consideration. We also note that the assertion that estate
       assets somehow automatically become trust principal upon the death
       of a testator who has created an unfunded trust that is to be funded via
       a pour-over will is unsupported by any citation to authority. Further,
       respondent’s claim is contradicted by the fact that the investment
       accounts continued to be held in the name of the “Estate of George
       Karavidas,” not in the name of the trust.
¶ 69       The finding of the Hearing Board that respondent breached his
       fiduciary duty is not against the manifest weight of the evidence. We
       decline to determine whether his conduct might also be labeled as
       conversion. The question remains whether this civil offense—for
       which a civil remedy is available to aggrieved parties—is a proper
       basis for professional discipline in this case.

¶ 70           Alleged Violations of Rules of Professional Conduct
¶ 71        The complaint states that respondent converted estate funds and
       breached his fiduciary duty and that he violated Rules 8.4(a)(4) and
       8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme
       Court Rule 770. These charges are enumerated (1) through (5). This
       is the Administrator’s standard way of stating charges, but it is not
       entirely clear whether the respondent was being charged with five
       separate types of misconduct, or he was being charged with violating
       three separate rules by committing two types of misconduct, which
       were, in turn, based on a single act.
¶ 72        We urge the Administrator to ensure that a complaint clearly and
       unambiguously inform a respondent of the specific acts with which
       he is charged and the specific rules that he is alleged to have violated
       by engaging in those acts.
¶ 73        Supreme Court Rule 753(b) provides that a disciplinary complaint
       “shall reasonably inform the attorney of the acts of misconduct he is
       alleged to have committed.” Ill. S. Ct. R. 753(b) (eff. Sept. 1, 2006).
       An accused attorney’s procedural due process rights, including the


                                        -18-
       right to fair notice and the right to an opportunity to defend against all
       charges, would be violated if an attorney were disciplined for
       uncharged misconduct. In re Chandler, 161 Ill. 2d 459, 470 (1994).
       When an attorney is accused of engaging in certain conduct, but that
       accusation is not tethered to an alleged violation of a specific Rule of
       Professional Conduct, it creates the risk that discipline might be
       imposed for conduct that does not violate professional norms.
¶ 74       For example, in In re Mulroe, 2011 IL 111378, the respondent
       attorney represented a friend in a dissolution proceeding, a matter
       outside his usual areas of practice. He agreed to hold the proceeds
       from the sale of the couple’s home until the allocation was
       determined by the court. Id. ¶ 7. The Hearing Board found that he
       converted client funds in violation of Rules 1.15(a) and (b) by failing
       to hold the escrow funds separate from his own property and to
       promptly deliver the funds upon demand by the rightful owner. In
       addition, he violated Rule 8.4(a)(5) by engaging in conduct that was
       prejudicial to the administration of justice and that brought the legal
       profession into disrepute. Id. ¶ 12. However, the Hearing Board found
       that the Administrator did not prove a violation of Rule 8.4(a)(4) by
       clear and convincing evidence where the conversion “was a technical
       one, not motivated by an intention to deprive” the rightful owner of
       the funds. Id. The attorney had the financial means to deliver the
       funds at all relevant times and honestly believed that he was not to
       distribute the funds to the ex-wife until the issues on appeal were
       resolved. Id.
¶ 75       This court rejected the Administrator’s argument that recklessness
       in the handling of client funds is sufficient to satisfy the scienter
       requirement of Rule 8.4(a)(4). Id. ¶ 19. While we acknowledged that
       the holding of client funds “is a serious fiduciary duty and should not
       be treated lightly,” we determined that “the question at hand is not
       whether respondent committed conversion, but whether the
       conversion constituted ‘conduct involving dishonesty, fraud, deceit,
       or misrepresentation’ such that respondent violated Rule 8.4(a)(4).”
       Id. ¶ 20. We declined to adopt a bright-line rule that reckless
       conversion creates a presumption of dishonesty. Id. ¶ 23. We also
       concluded that the Hearing Board’s finding of no dishonest intent
       behind the conversion was not against the manifest weight of the
       evidence. Id. ¶ 31. Thus, there was no violation of Rule 8.4(a)(4),
       despite the conversion.



                                         -19-
¶ 76       In contrast, in In re Merriwether, 138 Ill. 2d 191 (1990), the
       respondent attorney negotiated a settlement on behalf of a client in a
       personal injury case. The client’s medical expenses had been paid by
       the Illinois Department of Public Aid, which, thus, had a lien on the
       settlement proceeds. He remitted to the client the funds to which she
       was entitled, but despite repeated demands by the Department, failed
       to remit the amount due under the lien. Id. at 194-96. The attorney
       admitted that he used the money for personal purposes because he
       was in a “financial predicament.” Id. at 198. As a result, the balance
       in his client trust account fell below the amount of the lien. Id. at 197.
       This commingling and conversion of funds involved “client money,”
       but it did not involve money owed to the client; rather, it involved
       funds owed to a state agency to reimburse it for funds expended on
       the client’s behalf. Id. at 200. The Hearing Board found violations of
       numerous provisions of the Code of Professional Responsibility. (The
       Code of Professional Responsibility was replaced in 1990 by the
       Rules of Professional Conduct.)
¶ 77       This court found that the attorney’s conduct resulted in his client’s
       becoming subject of a body attachment order and a contempt
       proceeding when the Department, not knowing that the attorney
       retained a portion of the settlement amount, attempted to collect the
       funds owed from the client. This conduct violated the Code by
       inconveniencing the client. Id. at 200-01. See Ill. S. Ct. Code of Prof.
       Res. R. 7-101(a)(3) (eff. July 1, 1980) (prohibiting conduct that may
       damage or prejudice a client). In addition, the attorney also violated
       the Code by acting dishonestly in his dealings with the Department
       and by attempting to conceal his misdeeds. Merriwether, 138 Ill. 2d
       at 201. See Ill. S. Ct. Code of Prof. Res. R. 1-102(a)(4) (eff. July 1,
       1980) (prohibiting conduct involving dishonesty, fraud, deceit, or
       misrepresentation). Thus, it was not the conversion per se that
       constituted professional misconduct. It was the violations of several
       provisions of the Code of Professional Conduct. Conversion was the
       means of committing the violations.
¶ 78       Mulroe and Merriwether support the proposition that an
       attorney’s breach of fiduciary duty or conversion does not, standing
       alone, warrant the imposition of professional discipline. As the
       Review Board noted in the present case, discipline for conduct
       occurring outside the attorney-client relationship should be limited to
       situations where the attorney’s conduct violates the Rules by
       demonstrating “a lack of professional or personal honesty which


                                         -20-
       render[s] him unworthy of public confidence.” In re Bruckner, No.
       00-CH-12, at 30 (Hearing Board Aug. 8, 2001), approved and
       confirmed M.R. 17722 (Nov. 28, 2001).
¶ 79       In sum, we hold that professional discipline may be imposed only
       upon a showing by clear and convincing evidence that the respondent
       attorney has violated one or more of the Rules of Professional
       Conduct. Mere bad behavior that does not violate one of the Rules is
       insufficient.

¶ 80                          Supreme Court Rule 770
¶ 81       The Hearing Board concluded that respondent’s conversion of
       estate funds “tended to defeat the administration of justice in
       violation of Supreme Court Rule 771.” (Effective April 1, 2004, a
       new Rule 771 was adopted and the former Rule 771, to which the
       Hearing Board was referring, was renumbered as Rule 770.)
¶ 82       The Administrator argues that Rule 770 specifically provides that
       “attorneys may be disciplined for conduct that does not violate the
       Rules of Professional Conduct.” This argument focuses on the use of
       the word “or” in Rule 770 to argue that discipline may be imposed on
       an attorney either for violating the Rules or for engaging in conduct
       that does not violate the Rules, but that defeats the administration of
       justice or tends to bring the courts or the profession into disrepute.
¶ 83       We begin our analysis by noting that Rule 770 is a procedural rule
       of this court, not a Rule of Professional Conduct. As we noted in In
       re Thomas, 2012 IL 113035, ¶ 92:
               “Supreme Court Rule 770 is not itself a Rule of Professional
               Conduct. Rather, it is contained in article VII, part B, of our
               rules, which governs ‘Registration and Discipline of
               Attorneys.’ Rule 770 is titled ‘Types of Discipline’ and
               provides that ‘[c]onduct of attorneys which violates the Rules
               of Professional Conduct contained in Article VIII of these
               rules or which tends to defeat the administration of justice or
               to bring the courts or the legal profession into disrepute shall
               be grounds for discipline by the court.’ [Citation.] The rule
               then lists eight levels of discipline ranging from disbarment
               to reprimand. Thus, one does not ‘violate’ Rule 770. Rather,
               one becomes subject to discipline pursuant to Rule 770 upon
               proof of certain misconduct.”



                                        -21-
¶ 84       We do not attach the significance to the word “or” that the
       Administrator suggests. Aside from the placement of Rule 770 in
       article VII of our court rules, which signifies the procedural nature of
       the rule, the Rules of Professional Conduct are sufficiently broad to
       encompass conduct that defeats the administration of justice. Indeed,
       Rule 8.4(a)(5) prohibits conduct that is “prejudicial” to the
       administration of justice. Ill. R. Prof. Conduct R. 8.4(a)(5) (eff. July
       6, 2001). Further, one may bring the courts or the legal profession
       into disrepute by violating any of the Rules. However, attorney
       conduct that does not violate any of the Rules may not be the basis for
       professional discipline.
¶ 85       In the past, we have referred to Rule 770 and its predecessor Rule
       771 as if they were Rules of Professional Conduct. For example, in
       In re Winthrop, we stated that the respondent attorney, who made a
       false statement of material fact to opposing counsel, “violated both”
       Rule of Professional Conduct 8.4(a)(4) and Supreme Court Rule 771.
       In re Winthrop, 219 Ill. 2d 526, 558 (2006). A more precise statement
       would have been that he violated Rule 8.4(a)(4) by making the false
       statement and, thus, was subject to discipline pursuant to Rule 771.
¶ 86       We reiterate: by definition, violation of any of the Rules of
       Professional Conduct may tend to defeat the administration of justice,
       to bring the courts or the profession into disrepute, or both. If an
       attorney is proven to have violated the Rules of Professional Conduct,
       he is then subject to discipline under Supreme Court Rule 770. Rule
       770 cannot support a separate charge against an attorney because it is
       not a Rule of Professional Conduct; it governs the types of discipline
       that may be imposed upon a showing of a violation of a Rule.

¶ 87                  Rule of Professional Conduct 8.4(a)(5)
¶ 88       Respondent was charged with violating Rule 8.4(a)(5), which at
       the relevant time enumerated nine types of professional misconduct.
       In pertinent part:
                   “A lawyer shall not:
                                        ***
                       (3) commit a criminal act that reflects adversely on the
                   lawyer’s honesty, trustworthiness or fitness as a lawyer in
                   other respects.
                       (4) engage in conduct involving dishonesty, fraud,
                   deceit or misrepresentation.


                                        -22-
                        (5) engage in conduct that is prejudicial to the
                    administration of justice.” Ill. R. Prof. Conduct R. 8.4(a)
                    (eff. July 6, 2001).
¶ 89        Depending on the facts of the case, an attorney’s breach of
       fiduciary duty might involve criminal conduct, which could subject
       the attorney to discipline under subsection (3), or it could involve
       dishonesty, fraud, deceit, or misrepresentation, subjecting him to
       discipline under subsection (4). In the present case, the Administrator
       charged respondent with violating subsection (5).
¶ 90        The Hearing Board stated that respondent’s failure to properly
       document the loans was prejudicial to the administration of justice in
       violation of Rule 8.4(a)(5) because his failure to properly document
       the loans “eventually became the subject of court proceedings.”
¶ 91       In In re Vrdolyak, 137 Ill. 2d 407, 425 (1990), we interpreted this
       rule as requiring proof of actual prejudice to the administration of
       justice. Vrdolyak, an attorney who was also a Chicago alderman,
       operated under a conflict of interest when he represented a client in
       a dispute with the city. He did not, however, violate Disciplinary Rule
       1-102, which forbade engaging in “conduct that is prejudicial to the
       administration of justice” Ill. S. Ct. Code of Prof. Res. R. 1-102(a)(5)
       (eff. July 1, 1980)), because “clear and convincing evidence that the
       administration of justice was, indeed, prejudiced” was lacking.
       Vrdolyak, 137 Ill. 2d at 425.
¶ 92       Thus, in In re Storment, 203 Ill. 2d 378 (2002), we found that the
       Hearing and Review Boards’ conclusion that the respondent attorney
       had not violated Rule 8.4(a)(5) was not against the manifest weight
       of the evidence, despite his violation of Rule 1.5(f), which required
       a client’s written agreement to an attorney fee-sharing arrangement.
       The violation of the writing requirement had no impact on the
       attorney’s representation of the client or on the outcome of the case.
       Thus, the record lacked clear and convincing evidence of any
       prejudice to the administration of justice. Id. at 397-98.
¶ 93        In contrast, in In re Cutright, 233 Ill. 2d 474 (2009), the
       respondent attorney was found to have engaged in conduct prejudicial
       to the administration of justice in violation of Rule 8.4(a)(5) when he
       neglected an estate of which he was executor, allowing it to remain
       open for 17 years. Id. at 485. The actual prejudice to the
       administration of justice was that two heirs died before ever receiving
       their share of the estate and other heirs were forced to wait 17 years
       before receiving any distribution. Id. at 486.

                                        -23-
¶ 94       The attorney conduct at issue in In re Thomas was also prejudicial
       to the administration of justice in violation of Rule 8.4(a)(5). The
       respondent attorney, who had been suspended from practicing law,
       appeared before the Seventh Circuit to represent a corporation of
       which he was the president and sole shareholder. We noted that the
       corporation had filed for bankruptcy and that any recovery that might
       have been made in the litigation would have been part of the
       bankruptcy estate. Thus, because the respondent represented only his
       own interests as a shareholder, and not the interests of the bankrupt
       corporation’s creditors, his conduct did indeed prejudice the
       administration of justice. Thomas, 2012 IL 113035, ¶ 91. This was so
       even though his conduct did not result in actual harm to the creditors;
       his conduct undermined the judicial process and, thus, prejudiced the
       administration of justice.
¶ 95       Attorney Thomas also engaged in conduct that prejudiced the
       administration of justice by continuing to represent other clients after
       the date of his suspension. This conduct placed the interests of his
       clients in jeopardy because his unauthorized practice of law could
       have resulted in a default judgment for the opposing party. Id. ¶ 123.
¶ 96       In the present case, the Hearing Board concluded that
       respondent’s sister’s filing of a motion in the probate case implicated
       the judicial process, so that respondent’s conduct was prejudicial to
       the administration of justice. However, the record reveals no conduct
       by respondent regarding the motion to terminate independent
       administration or the later motion to replace him as executor that
       could have undermined the judicial process. The loans were made and
       repaid in full before her papers were filed. His breach of fiduciary
       duty, while not acceptable conduct for any executor, had no actual or
       potential effect on the administration of justice.
¶ 97       We, therefore, agree with the Review Board that respondent’s
       conduct, because he was not acting as an attorney and he was not
       involved in the judicial process at the time of the breach, did not
       undermine the administration of justice. While an attorney’s breach
       of fiduciary duty owed to a nonclient could constitute an act that is
       prejudicial to the administration of justice, this did not occur in this
       case. Further, if an attorney is to be disciplined for such conduct, the
       Administrator must, as a matter of due process, plead and prove that
       the breach of fiduciary duty had a prejudicial effect on the
       administration of justice. To the extent that our earlier decisions state
       or imply otherwise, they are hereby overruled.


                                         -24-
¶ 98                    Rule of Professional Conduct 8.4(a)(4)
¶ 99        Rule 8.4(a) lists nine separate acts that constitute misconduct. The
        Administrator charged respondent with violating Rule 8.4(a)(4),
        engaging in “conduct involving dishonesty, fraud, deceit, or
        misrepresentation.” The Hearing Board found no violation of this rule
        despite respondent’s breach of his fiduciary duty. We agree.
¶ 100       Under the manifest weight of the evidence standard of review, we
        give deference to the factual findings of the Hearing Board, because
        the Hearing Board is in a position to observe the witnesses’
        demeanor, judge their credibility, and resolve conflicting testimony.
        Timpone, 208 Ill. 2d at 380.
¶ 101       We see no reason in the present case to reject the Hearing Board’s
        findings. The record suggests that respondent did not fully understand
        his obligations as executor and trustee, not having practiced in this
        area, and that he may have been given confusing legal advice (or the
        questions he posed to his legal advisor were not sufficiently detailed
        to elicit correct advice). Whatever the case, there is no suggestion that
        he acted to deceive or to defraud; at most, he was careless in his
        duties.

¶ 102                               CONCLUSION
¶ 103       In sum, before professional discipline may be imposed under
        Supreme Court Rule 770, the Administrator must demonstrate that
        the attorney violated the Rules of Professional Conduct. To the extent
        that any of our prior cases suggest that an attorney may be subjected
        to professional discipline for conduct that is not prohibited by the
        Rules of Professional Conduct or defined as misconduct therein, we
        hereby reject such a suggestion. As a matter of due process, an
        attorney who is charged with misconduct and faces potential
        discipline must be given adequate notice of the charges, including the
        rule or rules he is accused of violating. Personal misconduct that falls
        outside the scope of the Rules of Professional Conduct may be the
        basis for civil liability or other adverse consequences, but will not
        result in professional discipline. We, therefore, accept the
        recommendations of the Review Board and dismiss the charges
        against respondent.
¶ 104       Charges dismissed.



                                          -25-
¶ 105       JUSTICE THOMAS, dissenting:
¶ 106       The majority holds that, although respondent breached his
        fiduciary duty in no less than four distinct ways while serving as the
        executor of his late father’s $700,000 estate, he nevertheless is
        immune from professional discipline because none of his misconduct
        violated a specific Rule of Professional Conduct. According to the
        majority, “before professional discipline may be imposed under
        Supreme Court Rule 770, the Administrator must demonstrate that
        the attorney violated the Rules of Professional Conduct.” Supra
        ¶ 103. By way of corollary, the majority then adds that, “[t]o the
        extent that any of our prior cases suggest that an attorney may be
        subjected to professional discipline for conduct that is not prohibited
        by the Rules of Professional Conduct or defined as misconduct
        therein, we hereby reject such a suggestion.” Supra ¶ 103.
¶ 107       The problem with the majority’s reasoning is that this court has
        not merely suggested that an attorney may be subjected to
        professional discipline for conduct that is not specifically prohibited
        by the Rules of Professional Conduct. On the contrary, this court has
        expressly held as much. In In re Rinella, 175 Ill. 2d 504 (1997), this
        court began its analysis by “reject[ing] respondent’s contention that
        attorney misconduct is sanctionable only when it is specifically
        proscribed by a disciplinary rule.” Id. at 514. In doing so, this court
        explained that “the standards of professional conduct enunciated by
        this court are not a manual designed to instruct attorneys what to do
        in every conceivable situation.” Id.
¶ 108       Quite notably, the foregoing portion of Rinella is not, as the
        majority would have us believe, anchored in an imprecise reading of
        Rule 770 (then Rule 771). In fact, this portion of Rinella is not
        anchored in Rule 770 at all. Rather, Rinella is simply an articulation
        of this court’s understanding of its own rules. And as Rinella points
        out, that understanding was memorialized in the 1990 preamble to the
        Rules of Professional Conduct themselves, which states in relevant
        part:
                    “ ‘Violation of these rules is grounds for discipline. No set
                of prohibitions, however, can adequately articulate the
                positive values or goals sought to be advanced by those
                prohibitions. This preamble therefore seeks to articulate those
                values ***. Lawyers seeking to conform their conduct to the
                requirements of these rules should look to the values
                described in this preamble for guidance in interpreting the

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                difficult issues which may arise under the rules.’ ” Id. at 514-
                15 (quoting Ill. R. Prof. Conduct, Preamble).
        According to Rinella, “[t]he preamble *** likens the practice of law
        to a public trust, and charges lawyers with maintaining public
        confidence in the system of justice by acting competently and with
        loyalty to the best interests of their clients.” Id. at 515. Consequently,
        Rinella explained, it is appropriate to look not just to the specific
        language of the Rules themselves but also to the principles set forth
        in the preamble in determining whether an attorney’s conduct is
        sanctionable. Id. at 514-15.
¶ 109        Although it is nowhere mentioned by the majority, Rinella is of
        paramount importance in this case. Indeed, once Rinella is taken into
        account, the majority’s reading of Rule 770 becomes untenable.
        Again, Rule 770 provides, in relevant part:
                     “Conduct of attorneys which violates the Rules of
                Professional Conduct contained in article VIII of these rules
                or which tends to defeat the administration of justice or to
                bring the courts or the legal profession into disrepute shall be
                grounds for discipline by the court.” Ill. S. Ct. R. 770 (eff.
                Apr. 1, 2004).
        Now on its face, this language would seem to state very plainly that
        there are two categories of conduct for which an attorney may be
        disciplined by the court: (1) conduct “which violates the Rules of
        Professional Conduct contained in article VIII of these rules,” and (2)
        conduct “which tends to defeat the administration of justice or to
        bring the courts or the legal profession into disrepute.” Indeed, such
        a reading is compelled by numerous well-settled canons of
        construction, not the least of which are that clear and unambiguous
        language must be enforced as written (Hines v. Department of Public
        Aid, 221 Ill. 2d 222, 230 (2006)) and that a statute or rule should be
        construed, wherever possible, such that no word, clause, or sentence
        is rendered meaningless or superfluous (People v. Jones, 168 Ill. 2d
        367, 375 (1995)).
¶ 110        Yet the majority’s reading of Rule 770 turns both of these canons
        on their heads. According to the majority, though Rule 770 clearly
        identifies two distinct categories of conduct for which an attorney
        may be disciplined by the court (conduct that violates a rule and
        conduct that tends to defeat the administration of justice or to bring
        the courts or the legal profession into disrepute), in fact, Rule 770
        identifies only one category (conduct that violates a rule). This

                                          -27-
        reading renders the phrase “or which tends to defeat the
        administration of justice or to bring the courts or the legal profession
        into disrepute” entirely meaningless. Indeed, if the majority’s reading
        of Rule 770 is correct, what possible reason is there for the inclusion
        of that phrase in the rule? The fact is, the majority’s reading of Rule
        770 is not driven by the plain language of that rule but rather by the
        majority’s conviction that due process prohibits an attorney from
        being “subjected to professional discipline for conduct that is not
        prohibited by the Rules of Professional Conduct or defined as
        misconduct therein.” Supra ¶ 103. But this is the very argument we
        rejected outright in Rinella. See Rinella, 175 Ill. 2d at 514 (rejecting
        respondent’s argument that “imposing *** sanction[s] under these
        circumstances would violate due process because [respondent] did
        not have adequate notice that his conduct was prohibited”). In other
        words, the majority’s entire reading of Rule 770 stems from a false
        premise.1
¶ 111       Once Rinella’s holding is taken into account, Rule 770 makes
        perfect sense on its face, and it becomes easy to give full effect to
        every one of its words, rather than to only half of them. Again,
        Rinella makes crystal clear both that “the standards of professional
        conduct enunciated by this court are not a manual designed to instruct
        attorneys what to do in every conceivable situation” and that attorneys
        may be sanctioned for engaging in misconduct that is not “specifically
        proscribed by a disciplinary rule.” In light of this holding, it should
        come as no surprise that Rule 770, which authorizes the imposition
        of discipline for attorney misconduct, authorizes it both for
        “[c]onduct of attorneys which violates the Rules of Professional
        Conduct” and for conduct that “tends to defeat the administration of
        justice or to bring the courts or the legal profession into disrepute.”


            1
             The majority cites this court’s recent statement from In re Thomas that
        “one does not ‘violate’ Rule 770. Rather, one becomes subject to discipline
        pursuant to Rule 770 upon proof of certain misconduct.” Supra ¶ 83
        (quoting In re Thomas, 2012 IL 113035, ¶ 92). Of course, this statement
        does not settle the question at hand; it raises it: What “certain misconduct”
        subjects one to discipline pursuant to 770? I believe that question is
        answered clearly both in Rinella and in Rule 770 itself: conduct which
        violates the Rules of Professional Conduct and conduct that, though not
        violating a specific Rule of Professional Conduct, tends to defeat the
        administration of justice or to bring the courts or the legal profession into
        disrepute.

                                            -28-
        Indeed, Rule 770 reflects and enables the very policy that the court
        articulated in Rinella. The two go hand-in-hand.
¶ 112       Now I recognize that, in 2010, the Rules of Professional Conduct
        were overhauled and that, with the overhaul, came a whole new
        preamble. This is of no consequence, however, for at least two
        reasons. First, all of respondent’s conduct in this case occurred prior
        to the 2010 overhaul, which means that at all relevant times
        respondent was operating under the very rules (and preamble) that the
        court construed in Rinella. But even if that were not the case, the
        preamble enacted in 2010 continues to reflect this court’s belief that
        “the standards of professional conduct enunciated by this court are
        not a manual designed to instruct attorneys what to do in every
        conceivable situation.” Rinella, 175 Ill. 2d at 514. Indeed, paragraph
        16 of the 2010 preamble expressly states that the rules “do not ***
        exhaust the moral and ethical considerations that should inform a
        lawyer, for no worthwhile human activity can be completely defined
        by legal rules.” Ill. R. Prof. Conduct (2010), Preamble, ¶ 16 (eff. Jan.
        1, 2010). Thus, there is absolutely no reason to believe this court’s
        understanding of its rules has in any way changed since Rinella.
¶ 113       In sum, I am convinced that, contrary to the majority’s
        conclusion, an attorney absolutely may be disciplined for misconduct
        that is not specifically set forth in our Rules of Professional Conduct.
        That was this court’s express holding in Rinella, and it is a policy
        clearly reflected in the plain language of Rule 770.
¶ 114       The next question is whether respondent’s conduct in this case
        justifies the imposition of professional discipline. I am convinced that
        it does. Again, this court has expressly held that an attorney may be
        subject to professional discipline for misconduct that is not
        specifically proscribed by a disciplinary rule, and Rule 770 authorizes
        the imposition of discipline for “[c]onduct of attorneys which ***
        tends to defeat the administration of justice or to bring the courts or
        the legal profession into disrepute.” Ill. S. Ct. R. 770 (eff. Apr. 1,
        2004). There is no question that respondent’s conduct in this case
        tends to bring the legal profession into disrepute. As the majority
        itself points out, respondent, a licensed attorney, engaged in
        numerous and serious breaches of his fiduciary duty while acting as
        executor of his father’s $700,000 estate. These breaches included (1)
        not funding the various trusts as required by the will but instead
        keeping the estate open and lending nearly $450,000 in estate assets
        to himself for his own personal benefit (supra ¶ 46); (2) failing to


                                         -29-
        document any of these personal loans and thereby placing the assets
        of the estate at risk (supra ¶ 46); (3) failing to disclose to any of the
        estate beneficiaries that he was treating the estate as a personal line
        of credit (supra ¶ 47); and (4) making unauthorized distributions out
        of the estate (supra ¶ 53). These breaches extended over a period of
        five years, and they came to an end only after respondent’s sister, a
        co-beneficiary of the estate, learned of respondent’s conduct and filed
        a petition to terminate independent administration. Supra ¶¶ 4-9.
¶ 115        The 1990 preamble states that the “practice of law is a public
        trust” and that “[l]awyers seeking to conform their conduct to the
        requirements of these rules should look to the values described in this
        preamble for guidance.” Ill. R. Prof. Conduct, Preamble. Among the
        values articulated in the 1990 preamble is that lawyers should
        “maintain[ ] public confidence in the system of justice by acting
        competently and with loyalty to the best interests of their clients.” Id.
        Similarly, paragraph 5 of the 2010 preamble now states that “[a]
        lawyer’s conduct should conform to the requirements of the law, both
        in professional service to clients and in the lawyer’s business and
        personal affairs.” Ill. R. Prof. Conduct (2010), Preamble, ¶ 5 (eff. Jan.
        1, 2010). The majority’s own analysis confirms that respondent’s
        conduct in this case did not accomplish any of these things. On the
        contrary, respondent’s conduct undermined confidence in the legal
        profession, displayed a profound lack of loyalty to the best interests
        of those to whom he was acting as fiduciary, and certainly did not
        conform to the requirements of the law governing fiduciary
        relationships. And while this may have been only a “personal affair,”
        it is worth noting that, as far as personal affairs go, the administration
        and execution of an estate is about as closely connected to the formal
        legal process as one can get. Historically, estate executors and
        administrators served formally as agents of the court itself, exercising
        by delegation the court’s power and the court’s responsibility over the
        estate. See Will v. Northwestern University, 378 Ill. App. 3d 280, 292
        (2007). The rise of independent administration has weakened that
        connection over the years, but the fact remains that even independent
        executors and administrators are discharging responsibilities that are
        closely connected with and directly serve the legal system. All this to
        say that respondent’s conduct in this case, while technically
        “personal,” also bore a very close connection to the profession he
        occupies. Accordingly, a higher standard of conduct was to be
        expected than what respondent displayed here.


                                          -30-
¶ 116       The Hearing Board recommended that respondent’s law license
        be suspended for four months. The Administrator is asking this court
        to suspend it for one year. In light of the mitigating factors that are
        present in this case—e.g., that respondent repaid everything he
        borrowed and apparently at no time acted with an intent to deceive or
        defraud—I believe the Hearing Board’s recommendation is
        appropriate, and that is the judgment I would support in this case.
¶ 117       For these reasons, I respectfully dissent.

¶ 118      JUSTICE KARMEIER joins in this dissent.




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