*1 OF ATTORNEY GRIEVANCE COMMISSION MARYLAND v. RICHARD KAHN
STEPHEN (BV) Term, 15, September 1979.] [Misc. No. July
Decided 1981. *2 J., C. and argued before Smith, cause was Murphy, The JJ. Eldridge, Cole, Davidson Rodowsky, Digges, Jr., respondent. for Murphy, F. Joseph Counsel, peti- Jr., Bar Assistant Murphy, Walter D. tioner. the Court. J., opinion delivered C. Murphy, J., JJ., dissent. Eldridge,
Eldridge, Cole Davidson, infra, in which Cole page at dissenting opinion filed a JJ., concur. Davidson, Commission, Bar acting through Attorney Grievance The against Counsel, Action Disciplinary filed a Petition for following Kahn, of the alleging violations Stephen Richard Code Rules of the provisions Disciplinary Responsibility: Professional
"DR 1-102 Misconduct.
(A) lawyer A shall not:
(1) Violate a Disciplinary Rule. (3) Engage in illegal conduct involving moral
turpitude. (4) Engage involving conduct dishonesty,
fraud, deceit, or misrepresentation. (5) Engage conduct that prejudicial to the justice.
administration of (6) Engage any other adversely conduct that
reflects on his fitness to law. "DR 1-103 Disclosure of Information to Author-
ities. (A) lawyer A possessing unprivileged knowledge of a
violation of DR 1-102 shall report such knowledge to a tribunal authority or other empowered to investigate or act upon such violation. 2-103
"DR Recommendation of Professional Employ-
ment.
* * * (B) A lawyer shall not recommend employment, as a
private practitioner, himself, partner, his or non-lawyer associate to a who has sought not his advice regarding employment lawyer. of a (C) lawyer A shall not compensate give or anything of
value person to a or organization to recommend or secure employment by client, his a or as a reward for having made a recommendation resulting in employment by client, except may that he pay the usual and reasonable fees or charged by any dues organizations listed (E). DR 2-103
(D) lawyer A shall request person not or organiza-
tion to recommend or promote the use of his ser- vices or associate, any those of his partner or or firm, or his as a with him lawyer affiliated other except that: practitioner, private (1) lawyer from a referrals may request He sponsored, or operated,
referral service may pay a bar association approved thereto. its fees incident
(2) legal services may cooperate He enumer- organizations or of the offices
any (1) (4) (E) may through 2-103 in DR ated whom he those to services for perform legal work if: it to do such was recommended (a) the recommenda- to whom person The a member or benefi- is made is
tion organization; or ciary of such office (b) exercise his free to lawyer The remains judgment professional
independent of this client. behalf Competently. to Act Failing
"DR 6-101 (A) lawyer A shall not:
(3) to him. legal matter entrusted Neglect a Zealously. a Client Representing "DR 7-101 (A) intentionally: lawyer A shall
(1) of his client objectives Fail to seek the lawful means reasonably available
through Rules, Disciplinary by law and the permitted (B). lawyer A provided by DR 7-101 except as *4 Rule, Disciplinary how- does not violate ever, acceding requests to reasonable prejudice the which do not opposing counsel client, being punctual of his rights commitments, by fulfilling professional all tactics, by treating or avoiding offensive persons consideration all courtesy and legal process. involved in the (2) employment carry out a contract Fail to ser- professional a client for into with
entered vices, may permitted withdraw as but he 5-102, 2-110, and DR 5-105. DR under DR (3) during his client Prejudice damage or relationship, professional
course of (B). DR 7-102 under except required Within the Bounds Representing a Client "DR 7-102 of the Law.
(A) client, lawyer shall of a representation In his
not:
* * * (3) that knowingly fail to disclose or Conceal to reveal. by law required he is (4) testimony or false pexjured use Knowingly
evidence. (5) of law or make a false statement Knowingly
fact. (6) preservation or in the creation Participate knows or it is obvious when he
evidence the evidence is false.
(7) in conduct his client or assist Counsel illegal or fraudulent. lawyer knows to be Prop- Identity of Funds and Preserving "DR 9-102 erty of a Client.
* * * (B) lawyer A shall:
(3) funds, of all secu- complete records Maintain coming
rities, of a client properties and other lawyer and render possession into the regarding accounts to his client appropriate them.”
A. matter, Maryland Rule BV9 pursuant We referred the Supreme Bench Judge of the b, Grady, J. the Chief to Harold Findings Fact and Conclusions to make of City, Baltimore of evidentiary hearing, an conducting After extensive of Law. and conclusions as Grady findings filed detailed Judge follows: in of law the to the
"Respondent was admitted in employed was Maryland 1969. He first of in State 1972 when he started attorneys early other until offices of learned that Morris S. the fall of 1972 he on own. In out his with which he had Berman, a law firm Esquire, leaving in order to establish years for several been associated injury handling personal specializing firm own Berman and agreement with Respondent reached cases. salary one-half of plus as on a joined him an associate At time Respondent produced. business whatever Robin, associate, Esquire, other Sheila Berman had one time personnel. During the and secretarial several clerical attorneys with Berman other associate Respondent was Within a short time varying periods. for employed were with principal associate Berman’s Respondent became account, escrow bank authority to draw checks on the office gen- credit charge expenses Berman’s cards business Berman was erally charge of the office when absent due take or vacation. to illness work, trial most of his time Respondent
"While did some personal injury claims for occupied preparation of settlement. There purpose to insurers presentation office at all open hundred cases Berman’s were several times, one thousand. in excess of probably many fifty sixty or times he would see as as testified at day many form letters were sent files one and that office which he never saw. At first all signature out over his with insurers were conducted actual settlement discussions clients, but at the final settlements with Berman were handled these the end of their association also steps final in settlement. at no time had more than about a dozen his own cases.
"Early in Respondent learned that Berman was investigation by submitting under federal authorities In false claims to insurers. the summer of 1974 Berman guilty entered a of in the plea charge U. S. District Court to a resignation of mail fraud and submitted his from prac- tice Respondent thought going of law. that Berman was turn over his law to Respondent but no financial 8,1974, agreed upon. terms were On November the Court of Maryland of Appeals accepted resignation Berman’s prejudice.
"Shortly Thanksgiving, before Berman method of argument a violent over the Respondent had Respondent’s taking practice. over Berman’s On the Wednesday night Thanksgiving, Respondent before and an- office, Jr., other in Snyder, associate Berman’s L. Paul Esquire, many took office records from Berman’s office building another location in the same which Respondent Snyder had rented. testified that these records by inventory were taken and him in photocopied order to open evaluate the cases in the office as a basis for a financial settlement with Berman for the transfer practice. Such a settlement never came about. From that time on wrongdoing. Berman has accused of all sorts of "Morris S. Berman that he prac- testified was admitted to Maryland November, tice in began law in 1961 and active in June, 1963. attorneys He became associated with other in general years many trial practice acquired and over several clients of his own. In 1972 he suffered a heart attack and upon recovery open decided to his own offices which he did in time late summer 1972. Within a short employed he Respondent and from time to time several other associates along with necessary personnel. office
"Approximately 80% of Berman’s practice consisted of automobile tort represented cases which he plaintiffs, most of allegedly whom injuries. had soft tissue From 25% 40% of these cases were directed to him runners to whom rep- During the course of his payments. he made cash frequently loaned cash sums clients he resentation of these system Berman utilized upon request. their to the clients recoup the cash checking order to double he described as major- clients. The vast runners or loaned paid he had In order to without trial. of cases were settled ity these he claims secured justify the these collab- settlement clients. In to whom referred of certain doctors oration reports false medical many doctors submitted cases these the number treatments falsifying bills and medical reports and bills Berman submit- which false rendered Pur- aid settlement. companies to insurance ted scheme, Berman would not after settlement suant to this full them but to the doctors the amounts claimed forward medical for himself. expenses retain of the stated part would arrange- knew his Berman testified that *7 and with the doctors who submitted ments with runners Respondent participated and that false medical information practices. in these by Postal February,
"In was notified U.S. 1974 Berman investigation for mail fraud. was under Inspectors that he in the U. S. District thereafter he was indicted Sometime of His recollection is that Maryland. Court for the District 1974, plea guilty a of to one during the summer of he entered At times he also testified either count of mail fraud. various Jury against a or some of the before Grand at trial doctors reports. During from false medical accepted whom had the late summer of he and discussed Respondent’s taking pending over cases but never reached 8, 1974, agreement. final an order financial On November Appeals Maryland striking was entered Court permitted Berman from the rolls those law Maryland. 1974, Berman Thanksgiving Soon after learned taking had to another office moved contends great him number Berman’s records. Berman Respondent by use of these records solicited Berman’s many any former clients and over cases without took payment complaints Berman. Thereafter Berman filed Bar against Respondent with the Associations also sought unsuccessfully to have Respondent prosecuted by both federal and prosecutors. state In June of 1976 Berman was sentenced the U. S. District Court to a term of three years, two and one-half of suspended, which were six months of which he served. presented testimony
"Petitioner of the following wit- nesses:
Morris S. Berman
George L. McGill Jr., Snyder,
L. Paul Esquire Joseph CookW. Glaser,
Harold I. Esquire Harry Street
Maureen Ferrara
Joseph Somerville
Beverly Benner, deceased, Ann testified before who (see
Inquiry Panel on October Com- 26). mission Exhibits "Respondent testimony presented of the following wit- nesses: Cahill, Jr.,
William W. Esquire Henry W. Prodoehl
Virginia Zeller III, Esquire Archibald Eccleston Black, Jr., E. Esquire Walter Mark G. Loeb
Benjamin Cardin, Esquire *8 Wiley Ronald J. Kahn, Esquire, Respondent
Richard S. "1. PAYMENT OF RUNNERS years "Morris S. Berman testified that for before several November, 1974, his disbarment in paid he cab drivers and people bring negligence other to the cases into his office. Of many times, open hundreds of in his office at all he cases brought estimated 25% to 40% were to him these runners. secretary, Benner, Berman’s Beverly Ann testified that she the 'main ones.’ When a runner as people fifteen knew about an to the office interview was client potential a brought recovery of the likelihood and to the conducted ascertain damages. Depending on recoverable extent of the probable paid in cash an amount evaluation, runner would be kept in the a amount cash to from substantial up $75.00 Berman, Respondent, Mrs. safe, to which office after only keys. Berman stated that had the Benner months he in hio office several had been Respondent Respondent at the runners to explained the situation about surprise no or Respondent expressed time practice. in that Thereafter unwillingness participate to Respondent’s frequently Berman saw various runners money Respondent get to office it not uncommon for and was or Berman was on vacation pay from Berman to them. When office, customarily at least one absent from the which was oper- entire day week, Respondent would conduct the per Berman testified that the middle ation. had own runners
became aware that him, to directly Berman was unable bringing cases to but give people. of those names testimony general
"Mrs. same as Benner’s subject people of runners. She named four Berman’s including Respondent pay, Joseph whom she had seen had also believed his own Somerville. She anyone name had never seen runners but was unable to any such payments person. make office, Ferrar, secretary "Maureen a in Berman’s testified runners, as knew several men one whom she seeing Respondent Somerville and recalled accom- Joseph into room where the pany runners about dozen times kept. actually Respondent pay cash cash was She saw Somerville only one time. driver, Somerville, cab self-employed taxi
"Joseph years he made a testified that for several go soliciting in automobile accidents people involved take them representation Berman’s office would clients, Somerville If the were people accepted there. safe. per client in cash from the office would receive $75.00 *9 weekly This was a occurrence on the average. After office, joined Berman’s Respondent Somerville dealt directly Respondent in Berman’s absence and received cash payments Respondent from on several occasions.
"Respondent testified that within a short time after becoming associated with Berman he realized that Berman was paying people bring to cases into the office and over a period got of time to know three or four of them. He realized that this wrong sought and other employment but without success. He first paid Joseph Somerville bringing clients to the office when Berman was not present. He stated that Berman him told over the telephone go to the office safe and pay cash Somerville or else he was through. wrong He it but he knew was did it. Thereafter he payments perhaps made similar to Somerville five or six direction, feeling times at Berman’s intimidated Berman. making payments any denied runner other having than Somerville and denied his own runners who brought directly him. cases
"Finding of Fact "During Respondent participated 1973 and 1974 in the practice bringing to runners for making payments cash potential clients to the law offices of Morris S. Berman where Respondent was an associate. The court finds Respondent’s personal involvement with Berman’s runners was more testimony extensive than he admitted his and payments was not confined to a few to Joseph Somerville. Respondent continued his association with Berman for more year than a becoming and half after aware of the any authority. and made no effort to what he report knew to His that he continued this explanation practice because employment was unable to find other The unacceptable. prove court finds that Petitioner failed to directly employed bring own runners to cases to him. of Law "Conclusion (C) conduct, (B), "By violated DR 2-103 (5) (6) (A). (A) (D); (1), (4), DR 1-103 DR 1-102 PAYMENTS TO RUNNERS "2. OF CONCEALMENT — *10 CHECKING DOUBLE supply to maintain S. Berman testified that "Morris made to runners or loans payments could be cash from which checking. clients, to he called double he resorted what to and the insurer’s check was was settled When a case deposited was received, full check the settlement place to his The client was asked Berman’s escrow account. drawn on two blank checks on the back of endorsement the client. payable made to Berman’s escrow account of one check with the fill in the front Berman then would check actually received. The the client second amount which a runner or paid the amount be filled in with would many of clients to a loan. As advanced the client as checks, cash, would cash both payment in Berman preferred what he paid the client. The client was already endorsed keep and Berman would to receive from the first check Ostensibly client had the the cash from the second check. they both checks as were proceeds received the from both had client, in fact Berman made to the whereas payable In cases where recouped improperly cash he had advanced. falsely expenses Berman inflated medical had submitted (discussed infra), expense an he would list for client as In fact supposedly paid the full amount to be to doctor. full of the medical bills pay Berman would amount ostensibly increase the to the doctor. Instead he would by the amount of the second client’s share of the settlement checks, and kept was converted cash double by Berman. Respondent of
"Berman that he informed testified a months after their association and that practice within few system. that she Respondent used the Mrs. Benner testified checking which thoroughly familiar with the double occurred at time of and that used settlement system when he conducted a settlement. denied stating any knowledge checking of double first left learned of it in 1975 after he had Berman.
666 1, rep- Exhibits and 3
"Berman stated that Commission checking. These exhibits case of double typical resented a on Berman’s escrow by Respondent checks are three drawn 1974, endorsed on the back dated March account L. McGill. The front of Commission George named client made handwriting in the Exhibit The in the amount of George $451.00. L. McGill payable Respondent’s Exhibit 3 is also front of Commission George L. McGill in the payable made handwriting payable Exhibit made Commission amount of $25.00. to amount with reference George completed L. McGill is not to the testi- according These exhibits signature. or drawer’s by way of that McGill received mony of Berman indicated his share of the $451.00 Commission Exhibit Exhibit 3 was cashed and $25.00 Commission settlement. *11 paid out in previously of monies kept was for reimbursement 2, Exhibit the McGill’s case. Commission connection with check, Although Respondent utilized. was not blank checks, he unable to on the handwriting identified his it existence denied that any for their but give explanation no checking scheme. McGill also had of a double part conceded that Exhibits but specific recollection of himby to represent payment could possibly Exhibit 3 if rendered. Even legal previously services Respondent checks in case, still used double Respondent this were the any record of to receive cash from McGill without order him, represented money as on its fact Exhibit payment than by Respondent. McGill rather received Fact "Finding of the Respondent knew of "The court finds that the settlement of during and utilized it checking double clients. cases with of Law
"Conclusion (A) (4) and DR 1-102 "By this conduct violated (B) (3). DR 9-102 AND REPORTS BILLS
"3. OF FALSE MEDICAL USE relating to the use of testimony of Morris S. Berman "The INTRODUCTION, in medical evidence is set forth false doing that in the clerical work Mrs. Benner testified supra. not many in cases did for settlements she knew that Berman stated in their bills to the doctors the full amount remit true not the represent he the doctors’ bill did knew bills he cut the doctors’ value of the doctors’ services. Instead by cash, checking, the amount double obtained testified that when which he had cut the bills. She the he also would cut Respondent handled some settlements bills, more Berman would have in some cases than doctors’ done. Harry Street
"The Case follow- Harry Street testified the "Commission witness December, passenger In he an auto- ing effect. 1972 was Jr., Murray by Raymond Murray, when mobile driven Hospital to Sinai where car was hit from the rear. He went day Murray home. The next he was examined and sent picked not know him at up another man whom did house him to law offices of Morris S. Berman. and took from him the There he met the who obtained injuries had suffered no and was details of his accident. He any after accident but cannot pain at time specifically gave whether he this information to recall Respondent. go was directed He *12 'a He to Dr. Perkel’s office office of Dr. Stuart Perkel. went many couple patients times’ each there were so of but time the some later date that he never did wait to see doctor. At if he had by Respondent contacted the who asked was that he had not Respondent seen Dr. Perkel. When he told so, him another doctor’s office. Respondent done directed to He unable name doctor but described location to Heights Dr. on Park being as the office of Melvin P. Sobkov by He on his first visit Avenue. was examined Dr. Sobkov any subsequent for treatment. Some but never returned stating a from time thereafter he received letter settled, that his case had he went whereupon been to given office and a check Berman’s The $450.00. amount of the settlement was to have been but $500.00 previously retained had been $50.00 by to him advanced cash.
"In testimony corroboration of Street’s Commission sub- mitted Exhibits 5A 5F taken through from Berman’s office concerning file Negligence Street case. Exhibit 5D is a Information form filled time Repondent out at of initial 2, interview December 1972. 5E and Exhibits 5F are copies carbon made when form letters filled in showing were date, only addressee, name, telephone address and number client, accident, date of Berman’s office file number and typed of sender. name Berman testified that Commission Exhibit 6B is a form sample of the letter and that Exhibits 5E were and 5F made when form as letters such Exhibit 6B were filled with reference Street. 5F is a letter Exhibit 4, 1972, referring dated December Street Dr. Stuart 1, 1972, Perkel for treatment for accident of December requesting that the doctor forward medical information upon completion of The typed treatment. name over which signature appear Respondent. would that of Exhibit 5A is note, in Respondent’s handwriting, signed 'Mary’ stating that two been sent instructing letters had to Street him to Dr. go Perkel that Dr. but Perkel had no record of patient. Street copy 5B is a carbon of a Exhibit note in handwriting of Respondent addressed to Street stating has requesting his case been settled and Street to inbe 10,1973. Respondent’s office on July 5E is a Exhibit carbon copy letter, portions July 12, 1973, of a form dated referring Sobkov, Street to Dr. showing Melvin the date of 1, 1972, accident be typed December over name of Respondent. report Exhibit 5C is a of Dr. dated Sobkov Feb- ruary 28, 1973, to Respondent concerning addressed showing treatment Street the date accident to be 1, 1972, December date of and the examination Dr. be Sobkov to December 1972. With report is Dr. Sobkov’s showing twenty-one bill that Street received physi- cal December, therapy treatments January *13 These 1973, charge being $315.00. the total February, to was referred that since Street clearly Exhibits establish July, 1973, Dr. Sobkov’s time in Dr. for the first Sobkov 2, 1972, on December Street that he had examined report 27, 1973, both was false February him treated until report fraudulent Dr. Sobkov’s its to its date and contents. by to Allstate Insurance Berman bill was forwarded Street’s claim. damages support proof of Company as 5E 5F although Exhibits that testified "Respondent these sender, had no recollection of bore his name as Dr. likely letters had been sent that papers and most actual by Dr. secretaries without Perkel and Sobkov seeing the recall He that he does not signature. stated came 5C, likely when it but that most report, Exhibit Sobkov all of the corre- him, time to review he did not have neces- compiled what was simply in the file but spondence file over to and turned the sary for settlement discussion deal with insurer. Berman who would file revealed that an of the would have concedes examination fraudulently back-dated but report that Dr. Sobkov’s knowingly report. not used the false he had "The E. Case Charles Crawford "The matter evidence with reference to the Crawford testimony S. Berman and a series consisted of Morris papers as Commission from his office file introduced appear 4A did as a wit- through Exhibit 4G. Crawford Form filled out Negligence ness. Exhibit 4C Information is a Beverly first by Benner at the time Crawford was 1972, 2, of the stating interviewed on November date referred, 30, accident to be October 1972. Crawford Benner, Dr. Melvin Sobkov for probably Mrs. treatment. 4F is a letter from Government Exhibit Employees Company Insurance dated December stating reports no medical addressed have been in the case. received insurer Crawford January 23,1973, copy Exhibit 4A is a of a note carbon dated Dr. in the addressed to handwriting *14 Crawford, referring to the case of Charles D/A Sobkov 10/31/72, stating that client had never come see immediate appointment. but that he would make an doctor includes, The The note 'Please note above D/A.’ evidence is Exhibit 4B is an means date of accident. clear D/A 26, 1973, Dr. February from report undated and a bill dated in stating that Crawford had been examined Sobkov 31,1972, had rendered office on October and thereafter been treatments. The bill lists twenty-seven physical therapy in twenty-three twenty-seven of these treatments on dates December, 1972, 1973, January, all November dated Respondent’s before the date of note to'Dr. Sobkov January 23, by forwarded report 1973. false was This of in of proof damages support Berman to the insurer as Crawford’s claim. testimony concerning the Crawford matter
"Respondent’s essentially gave as that which he in the case was same Street, Harry supra. of Crosby
"The Case of Roberta Crosby respect "The evidence with to the matter consisted testimony papers Berman and a series of of the of Morris S. file, 6A from his office introduced as Commission Exhibit as a witness. Exhibit 6A through Crosby appear 6G. did not Form filled out someone Negligence is a Information Crosby at the time was first Respondent other than 19, 1973, stating interviewed on November the date of acci- 17,1973. dent to be November Exhibit 6G is the office carbon Dr. copy of a form letter dated November Crosby to him treatment. This referring Leonard Gilmor for letter name of the as the sender. typed has the copy completed Exhibit 6B is a carbon of the form of which copy, showing signature Exhibit 6G is the office written written, this letter 'Never Respondent per VF. On it stamp came in.’ A date on Exhibit 6B shows 12,1973. Exhibit received the Berman office on December 17,1973, is a of a dated December in the copy 6C carbon note Crosby handwriting addressed to you have not states, advises that 'Dr. Gilmor immediately.. him to see arrange him. Please yet seen 26, 1974, dated April Gilmor report of Dr. 6D is Exhibit the doctor Crosby examined stating that July dated 19,1973. is Dr. Gilmor’s bill Attached November treatments physical therapy 18, 1974, charging seven December, 1973, before in November dates rendered on — Exhibit Respondent’s note 17,1973, the date December adjuster for by Berman to an 6D was forwarded 6C. Exhibit Crosby’s claim. damages support proof the insurer as concerning the testify specifically did not "Respondent Crosby matter. *15 Akinsemoyin Case
"The of Mutiu matter of the Akinsemoyin in the consisted "The evidence S. a from testimony papers of Morris Berman and series of file, 10A as Commission Exhibit office introduced Akinsemoyin appear 10J. did not as a witness. through filled out Negligence Exhibit 10A is a Information Form Akinsemoyin the time interviewed Respondent at first 4, 1973, the the accident stating on December date of 2,1973. the copy was December Exhibit IOC is office carbon of dated showing signature Respondent of letter the typed 5, 1973, Akinsemoyin Dr. Frank referring December to form copy completed Exhibit 10B is Roberts. a carbon written copy, showing on which Exhibit IOC office signature Respondent VF. On letter is per of the written, in Dr.’ place, came in’ in another 'Not 'Never A that it received in stamp on Exhibit 10B shows date 18, 1973. Exhibit 10D is an Berman office December 1973, 20, copy carbon of a form letter dated December office Akinsemoyin a blank had filled with showing that been Roberts, Road, Baltimore, Maryland 'Frank 5212 Harford 21214, your case’ be examined in reference accident 10G is typed signature Respondent. over of the Exhibit Roberts, 23, of Dr. both report April and a bill Frank dated showing Akinsemoyin addressed to charged Dr. bill December 1973. Roberts’ was seen on December, 1973, before on four dates treatment rendered referring Akinsemoyin for 20, 1973, the letter December in the copy is a carbon Exhibit 10A examination. forwarding Dr. of a letter handwriting Adjustment proof Bureau as bill to the General Roberts’ Akinsemoyin’s claim. Exhibit damages support the settlement of negotiated indicates that the this claim. concerning the testify specifically did not
"Respondent matter. Akinsemoyin of Robert Lee Johnson
"The Case Lufadeju Emmanuel The Case of testimony and several exhibits lengthy "While there was matters, evidence did these in connection with offered clarity as the same any impropriety not establish Akinsemoyin, supra. Crawford, Crosby and Street, shown re by a would be served purpose no useful Consequently, outline of them. detailed
"Finding of Fact Street, Crawford, Roberta Harry "In Charles the cases *16 is clear that Akinsemoyin the evidence Crosby and Mutiu for medical reports and bills fraudulent medical false and in damages proof Respondent were used services clear equally The evidence is personal injuries. for claims was false or that the evidence Respondent that knew him the evidence to that it should have been obvious that was false. many handling so that he was
"Respondent’s explanation the evidence was not have time to review cases that he did compiling unacceptable.
"Conclusion of Law (A) (4) conduct, "By Respondent this violated DR 7-102 (6) (A) (5) (6). (4), (1), and DR 1-102 "4. THEFT OF INFORMATION FROM BERMAN’S
OFFICE FILES "In September, following plea his in the U. guilty S. District Court to one count of mail fraud S. Berman Morris petition resignation submitted his to the Court of Maryland Appeals requesting that he be allowed until 1, 1975, January ensuing his In the up practice. wind many weeks there were conversations between Berman and the Respondent Respondent to the effect that would take agreement over or practice, Berman’s but no final financial 8,1974, settlement was reached. On November the Court of Appeals accepted resignation Berman’s effec- prejudice immediately. Respondent during tive testified that disbarment, immediately following weeks Berman took many of the manila case files from his office to his home and destroy if arrangements threatened them financial could whereby not be made profit he could from them.
stated that he taking was anxious to finalize over Berman’s practice difficulty but arriving assessing had at a basis for Shortly its value. Thanksgiving, according before Respondent, Berman proposed practice continue under Respondent’s name remaining with Berman as his assistant in capacity similar to that of an insurance adjustor which Berman contended did not constitute continuing law. testified that he rejected plan precipitated ordering Berman’s him out of the office. Snyder, Jr.,
"At that time Respondent and L. Paul a rela- newcomer, tive were only associates Berman’s office. testimony The open was indefinite as to the number of files being Berman’s office which were serviced Snyder but it appears the number was probably in excess of 600. When an office file opened *17 copies x 8"information completed multiple were of 5"
there the identifying concerning data case. listing the basic sheet file copy envelope became the label on a manila One pink for A the file label copy was created each client. Tuesday preceding Thanksgiving, as an index used card. On office, from the when Berman was absent secretaries, Snyder and directed his associate two Maureen take pink and Farrow to the index cards Ferrara Linda relating being by Respondent to the serviced and cases from copy slips the backs of the Snyder pink onto these case, certain concerning files information each manila basic information, police report, medical such as number like, the insurer and the insurance claim number and all overtime working evening. On of which necessitated Wednesday night Thanksgiving, without Berman’s before Snyder pos- office knowledge, Respondent and had their moved office another office sessions from Berman’s building, slips previously them the taking pink same with hours, night to. at the direction of During referred made of these Respondent, photocopies slips. Linda Farrow days original pink slips were returned to Several later the pink group Berman. Exhibit is a of these Commission numbering well over 200. slips, "Respondent great length at that this was done in testified acquire inventory hoped order to the cases which he from them. place Berman and enable him to value on that Respondent’s purpose "The Commission contends sufficient from file so that he could get information each involved, file represent realizing recreate the client agreement that he would to reach an not be able complete Berman and that Berman’s office file would not be turned over him. for completed arrangements
"Thereafter Berman trans- ferring Spector, his case Allen B. with whom Esquire, files to no arragements. he had made financial There was written agreement Spector between Berman and evidence is any, as to if later payments, not clear what Berman received Spector. seeking from It clear that Berman was reimbursement any money legitimately him expended *18 costs, clients, police costs such as court of former on behalf basis for meruit quantum payment and also etc. reports, before his disbarment. rendered clients legal services his 1974, under the 9, was sent out a letter December "On to Berman’s City Bar Association the Baltimore auspices of Berman recommends advising them that clients former their cases and their handling of for the future Spector to retain a The client was told office. Spector’s files were deliver the Spector whom would lawyer of his choice to own Respondent and also stated that file. The letter client’s Berman, continuing prac- were former associates of Snyder, copy 20 is a Exhibit at their new location. Commission tice letter, Bar Association In to the of this letter. addition to Berman’s announcements printed also sent num- telephone new location and giving former clients Snyder. Respondent testified that ber not mailed until well after the accouncements were these 22A Exhibit Bar Association letter. Commission February envelope postmarked one such announcement and 21,1975. Respondent explain could not Commission Exhibit 32 and 32A another announcement and which was such 7, envelope postmarked December 1974. mailing of Respondent’s contends that
"The Commission Respondent’s agreement the announcements violated only Berman that the Bar Asso- the Bar Association and/or former clients. letter be sent to Berman’s ciation would any agreement was reached. Respondent denied that such Association letter "Respondent testified that after the Bar many Berman’s were sent out and his announcements to him for he had come to know came former clients whom original but that he was unable secure representation However, by use of the information Spector. office files from of insurance com- pink slips cooperation on the and with the ultimately duplicate file and panies, he was able to create concluded testified that he many settle cases. any proceeds legal that Berman had no claim to settlements, incurred legitimate expenses these neither legal nor for services by Berman before his disbarment quantum his disbarment on a meruit basis. rendered before Respondent’s Exhibit 9 legal is a memorandum from The Research Group, 9, Inc. February dated concluding that the majority view in country is that the disbarment attorney of an is tantamount voluntary abandonment of attorney’s contract with the client and therefore bars recovery by attorney either in or in quantum contract meruit for services rendered. Consequently Respondent made no such payments to Berman.
"The evidence disclosed that Respondent’s income from during $27,198. of law 1974 was following The year, $47,566. his income was Respondent testified that this increase in his income in 1975 was due to rep- resentation of former clients of Berman who came to him for *19 representation. continued
"Finding of Fact "During his association with Berman, Morris S. much of Respondent’s time spent accumulating information about being prosecuted claims for Berman’s clients. How- ever, as a employee Berman, salaried acquired property no interest or claim of right in the infor- mation contained in Berman’s office files at the time of Berman’s disbarment. Consequently, the removal and photocopying of Berman’s summarizing records the contents of Berman’s office files an illegal appropriation of the information contained therein. Whether this information was useful in attempting to reach a agreement financial immaterial, with Berman is as the evidence is clear that it was not used for purpose this but instead was used Respondent for his own financial benefit in facilitating his representation of former Berman clients.
"The question of whether or not Berman was entitled to receive from Respondent any proceeds realized from the cases of former Berman clients whom Respondent rep- resented is irrelevant to and need not be decided for the purpose of these proceedings.
"The court finds Respondent’s mailing of an an- nouncement to Berman’s former clients did not violate an agreement between Respondent and/or Berman and the Bar However, City. Association of Baltimore improper it was for purpose to use for this information improperly appropriated from Berman’s office files.
"Conclusion of Law (5) conduct, "By (1), (4), Respondent violated DR 1-102 (6). "RESPONDENT’S TO DISMISS BASED ON MOTION
LACHES "The Commission’s Petition for Disciplinary Action 16, 1978, recites that Bar Counsel was notified on March 15, 1977, that the Review Board on December had directed that charges against Respondent. be filed The Petition Disciplinary Appeals Action was filed in the Court of Maryland February 1980. contends that there unjustifiable was an unreasonable and delay in the institution of proceedings these which has in preju- resulted Respondent. dice to the conceding While there is no Statute of applicable disciplinary Limitations pro- ceedings, Respondent contends proceedings that such are equitable in nature and that the instant Petition should be dismissed because the guilty Commission is of laches.
"Finding of Fact "Assuming without deciding that the defense of laches is applicable in disciplinary proceedings, there is no substan- tial evidence that the prejudiced by has been delay in prosecuting charges. the instant contrary,
"On the passage of time from the date of the violations found herein to the date of the hearing on these violations has enabled the Respondent to present evidence of good behavior and gratuitous service to worthy causes past years. over the five and one-half
678 of Law
"Conclusion to is too known to Maryland relating "The law laches well Parker v. See Board Election here. repetition bear Ford, 130; also Bowie v. Md. Supervisors, Md. 230 126 at 269 at 122. 111 grounds of to Dismiss on the laches
"Respondent’s Motion hereby denied.” B. Grady’s findings only in Judge exception
Kahn took First, Grady he erred particulars. Judge contends that three (a) that at no time findings his refusing adopt proposed in any Disciplinary he violated 1974 had Thanksgiving, since (b) Rule, prior subsequent and to his that his conduct that his exemplary Berman was so association with findings, These accord- interrupted. of law should now be Kahn, of the sanction question were "crucial” on ing Second, upon him Kahn to be for imposed misconduct. Grady finding in he Judge erred that used claims that checking transacting business with double scheme "when clients, his own that an 'illegal appropria- he committed in he removed from Berman’s office tion of the information’ Third, Judge Kahn maintains November 1974.” the defense of laches was Grady concluding erred in in case. inapplicable an course, findings hearing judge
Of the factual attorney prima are facie correct disciplinary proceeding clearly unless erroneous. will not be disturbed review Attorney Kerpelman, 288 Md. 420 Griev. Comm’n v. Marshall, (1980); Bar Ass’n v. Md. A.2d (1973). argument excep- A.2d 677 In oral before us on tions, convincing conceded that clear and evidence Kahn Grady from he could Judge was adduced before find, did, extensively impli- as that Kahn was properly he money to runners to obtain clients payment cated false and fraudulent Berman; knowingly used and that damages conducting proof medical and bills reports *21 involving Berman’s injury cases in personal settlements clients. respect to Kahn’s Grady’s findings with Judge
We think f sup- are checking ieme” also "double involvement in the required as Rule convincing evidence and ported clear ¡n merit, vs exception addition, find Kahn’s we 8V10 rl. In * n oner nan’s clients’ files. misappropriate ¡ling i i demonstrates, convincingly, Judge clearly and The record the informa- Grady found, illegally appropriated Kahn for his own financial benefit files tion from Berman’s Berman’s former clients. facilitating plan represent his misconduct, occurred between Notwithstanding his some seven suggests Kahn that disbarment 1972 and for a years inappropriate would an sanction number later be firm in Berman’s of reasons: that as a salaried associate misconduct; from Ms that he was personally profit did not directions or required mere to follow Berman’s employee obey; young that he was face dismissal if he did relatively the bar the time he entered Berman’s new to at only prior thereto for three employ, having been years; engaged in which he the misconduct in Baltimore tacitly accepted by the bar practice, common and for City; employment to obtain other that he was unable Berman; that reason did not terminate his association professional record of conduct both and that his unblemished prior to and subsequent his involvement with Berman participation in numerous civic and charitable is no need to since 1974 demonstrate that there activities protect public. him to impose upon a severe sanction charges against Kahn It is that the heart of the evident of false and fraudulent medical knowing involves his use personal injury bills to enhance the value reports and companies. Although never claims filed with insurance illegal in these charged criminally participation for his activities, fraudulent misconduct it is clear that Kahn’s in Attor- to that involved turpitude involved moral similar Klauber, 423 A.2d ney Comm’n v. 289 Md. Griev.
(1981), Reamer, Attorney Comm’n v. 281 Md. Grievance *22 (1977),
323,
in each of which cases disbarment
Furthermore, the record does indicate although monetary specific Kahn received a reward for act of each *23 misconduct in engaged, thereby which he it cannot be con cluded that personally he did gain as a result of his See, misconduct. e.g., Snyder, Bar Ass’n v. City of Balto. 273 (1975). 534, 537, 331 Md. A.2d 47 The evidence shows that as progressed time Kahn deeply become more involved in Ber illegal man’s activities and that he continuing received in in salary. circumstances, creases In these it cannot be concluded that continuing willingness Kahn’s to aid in the illegal prospering of Berman’s personal was without to gain himself. Kahn,
That in position order retain his associate with Berman, may necessary engage have it in deemed the illegal fraudulent and other and in ques- unethical activities is hardly tion a sanction mitigating circumstance the to be imposed knowing for his Obviously, high misconduct. the ethical standards and professional obligations of an attorney may never be breached because an attorney’s employer may direct such dismissal, a action pain course of on of or the misconduct particular thought be consistent with sim- ilar in engaged misconduct in lawyers other the same locality. Agnew, See supra.
In support of his contention that his unblemished record prior to and to his subsequent association Berman calls a disbarment, for sanction less than on Attorney Kahn relies Freedman, 298, Griev. Comm’n v. 402 Md. A.2d 75 (1979), and Attorney Howard, Griev. Comm’n v. 282 Md. (1978).
515,
case,
As
disciplinary
In St. Bar Ass’n (1974), attorney in 1970 of was convicted A.2d 809 income payment to evade the federal willfully attempting turpi- moral involving 1962 and an offense taxes in or only a reprimand the contention that rejected tude. We length of time which because of the suspension required the investigation initiation of between the elapsed had proceedings. the formal Grady purposes Judge for the this case
Accepting any that Kahn had not should have found as a fact violated employ in leaving since Berman’s Disciplinary Rules to be finding would not lessen sanction such case.2 It imposed which occurred misconduct *24 asserts, true, disciplinary purpose as Kahn the public, punish the rather than to proceedings protect is to See, supra, attorney. e.g., Kerpelman, 288 Md. at erring the 630, 637, 382; Bailey, 286 Md. Attorney Griev. Comm’n v. (1979). However, wrong Kahn is 408 1330 A.2d Freedman, attorney voluntarily 1. the In terminated con- his unethical Howard, investigators. hearing duct and disclosed it to federal In the court offending attorney’s found that the as a fact misconduct not motivated by dishonesty greed. or by Judge Grady finding, requested properly 2. declined to make a as Kahn, Court, post-Berman exemplary that his was so that this conduct body, sanctioning the not disbar him. should
683 purpose. this not further will disbarment that his perception only not public the attorney protects of an disbarment The himself, Attor attorney by the victimized being further from A.2d 775 Md. 388 Flynn, 283 v. Comm’n ney Griev. case, protects it in this also, relevant (1978), much more but legal of the to members it demonstrates "because public the not toler court will which a of conduct type profession necessary "to 382, and is Md. at 288 ate,” Kerpelman, supra, system of judicial legal and of the integrity preserve In Bar Ass’n Callanan, Md. at 557. supra, Maryland,” (1975), a A.2d 710 275 Md. City v. Siegel, Balto. attorney who by an evasion involving willful tax case by presented here arguments similar to those advanced Kahn, noted: we mem as a his 'record notes that respondent
"[T]he
unblemished
forty years was
for over
of the Bar
ber
in his
esteem
with obvious
is]
... held
[that
man,’
family
as a
lawyer
community, both as
extenuating circumstances
are
he asserts
disbarment.
than
warranting a lesser sanction
our
more distasteful
make
tend to
plaudits
These
but,
type
proceeding;
responsibility
must
remain
character
attorney’s
'an
because
’
duty,
since
has
reproach,
this 'Court
beyond
mainte
officers,
upon
to insist
attorneys are its
prevent
and to
of the bar
integrity
nance of the
lawyer
from
individual
of an
transgressions
pro
Disciplinary
disrepute.
into
image
its
bringing
purpose,
for this
established
ceedings have been
for
as a catharsis
but rather
punishment,
for
public.’
for the
prophylactic
and a
profession
added)
Agnew,
Bar Ass’n v.
Maryland St.
(emphasis
Bar Ass’n, 259
549;
v. Balto. Co.
see Balliet
supra at
(1970).
constancy in this
474,270
Our
Md.
A.2d
respect
our
cannot be shaken
responsibility
by our
attorney’s
reputation,
individual
an
bar,
at the
of his career
recognition
longevity
to the commu
for his service
appreciation
our
or
original).
(emphasis
Md. at 528-29
nity.” 275
*25
by Kahn
of the reasons cited
concluding
In
that none
in the circum
than disbarment
justify a sanction other
case,
argu
found no merit Kahn’s
of this
we have
stances
against
filed
charges
a defense to the
ment that laches was
gross
case was
delay in Kahn’s
him. While the
—
by newly
readily acknowledged
a fact
inexcusable
excep
the
during
argument
oral
appointed Bar Counsel
—
Grady that the evidence does
Judge
agree
tions we
with
delay.
by the
Because
prejudiced
not show that Kahn was
attorney
an
is to
disciplinary
against
action
purpose
disciplinary petition
of the
public,
dismissal
protect
Attorney Grievance Commission
the sole
reason
manifestly
proper dispatch
is
proceed
failed to
Collins,
Bar Ass’n v.
See Anne Arundel Co.
unwarranted.
(1974);
City
Bar Ass’n of Balto.
272 Md.
Disbarment Kahn Stephen name of Richard we therefore direct that the authorized to law from the rolls of those be stricken Maryland. ordered; respondent It is so shall pay all costs as taxed the clerk Court, including of this costs transcripts, pursuant of all Maryland Rule BV15 c for which in favor judgment sum is entered Com- Attorney Grievance Stephen Richard against mission Kahn. J.,
Eldridge, dissenting: misconduct, judge, the trial Although Kahn’s as found requires strong disciplinary extremely serious and action, disbarment I that the ultimate sanction of believe circumstances of this case. not warranted under all of the Instead, suspension. I a substantial would favor majority’s with the
Preliminarily,
agree
I cannot
Grady’s
find
Judge
refusal
sustaining
exception
*26
turpitude
moral
similar to
misconduct involved
that Kahn’s
Klauber, 289
Attorney
in
Comm’n v.
involved
Griev.
that
(1981),
A.2d 578
Attorney
and
Md.
Griev.
Reamer,
(1977),
Md.
Apart "finding,” from the above-discussed upon bear mitigating properly case circumstances which "[i]t is true majority The admits that imposed. sanction to be illegal ofthe prime that Kahn was not the mover or architect young acknowledges that Kahn was majority scheme.” The only employee, hired He was salaried inexperienced. injury” years "plaintiffs personal in a three out of law school in a certain manner. He practice which conducted business a more superior, of his requirements following was directly experienced attorney. Being salary, he did not improper practices. benefit from the Although the of practicing by illegal manner Berman was unethical, was, unfortunately, it prac- known common tice among many City similar firms in at the Baltimore many time. This investiga- has been shown criminal prosecutions years, tions and in recent as well as informa- conveyed by City lawyers tion Baltimore since the investigations. commencement of those criminal We often young lawyers they tell "practical” do not learn the aspects practicing from law law school but that such working from experience, acquired from
knowledge comes of the bar. While or for more senior members firms law relatively excusable, that a new not it is understandable law firm or for an bar, going to work for a member actually things how are attorney, seeing experienced or though even he knew acquiesce, would practice, done in the law that the manner suspected wrong. conducted the existence of majority dispute
Although the does case, majority either factors in this the above-discussed say they do not them or seems simply discounts fully agree I that none of these misconduct. excuse Kahn’s misconduct; known, have Kahn’s should factors excuse *27 know, practices that the in which and admitted that he did Nevertheless, these factors should wrong. he engaged were sanction. Con- determining appropriate be considered circumstances, I would disbar sidering all of the him for a substantial attorney suspend but would young period time. authorized me to state Cole and Davidson have
Judges they expressed the views herein. concur with