458 Pa. 439 | Pa. | 1974
Lead Opinion
Opinion by
By order of the Disciplinary Court of the Court of Common Pleas for Philadelphia County, appellant was suspended from the practice of law for five years.
Our primary responsibility in this case is to review the record of the proceedings below. However, prior to that discussion, there are several preliminary questions which we must consider.
Initially, appellant contends that the proper standard of proof in disciplinary proceedings is the “reasonable doubt” standard. We disagree. Disciplinary proceedings are not criminal in nature; hence, the reasonable doubt standard need not apply. Moreover, the sanctions arising from such proceedings — censure, suspension, or disbarment — are not primarily designed for their punitive effects, but for their positive effect of protecting the public and the integrity of the courts from unfit lawyers. See Moyerman’s Case, 312 Pa. 555, 563, 167 A. 579 (1933). While we recognize the severe impact that such sanctions may have on an individual’s career, we are also mindful of our duty to uphold the quality and integrity of the Bar. Accordingly, we shall not require proof beyond a reasonable doubt, but shall retain the standard which this Court has consistently utilized in disciplinary cases through the years: “that a preponderance of evidence is necessary to establish an attorney’s unprofessional conduct and the proof of such conduct must be clear and satisfactory ” Krehel Appeal, 419 Pa. 86, 89, 213 A.2d 375, 377 (1965).
In a related argument, appellant asserts that the charge of solicitation by runners cannot be sustained where there is no direct evidence of his payment of compensation to such runners. Again, we disagree. While the court below inferred “that the solicitors did receive something of value for their time, efforts and expense on [appellant’s] behalf,” this inference was unnecessary to sustain a finding of guilt. The Code of Professional Responsibility condemns such conduct
Moreover, the fact that some of the solicitation for which appellant was adjudged guilty occurred prior to the effective date of the present Code of Professional Responsibility is of no consequence. This Court has never required proof of compensation in these circumstances. Klensin v. Board of Governance, 312 Pa. 564, 168 A. 474 (1933), clearly indicates that proof that the accused paid “runners” is not essential to a finding of guilty of solicitation through runners. The Court there quoted with approval from the report of the hearing masters: “ ‘The first charge of unethical soliciation [sic] of business is amply sustained by the evidence. It is true that respondent did not employ ‘runners’ at a compensation. The work of solicitation was confined to his father, who may not have received any cash consideration for the work. . . .”’ 312 Pa. at 571, 168 A. at 476-77. Thus, proof of compensation is not required for a finding of guilt with regard to any of the charges of indirect solicitation.
Appellant also contends that he is entitled to a new trial because counsel for the Special Judicial Investigation started to inquire about appellant’s Fiftth Amendment assertion in an earlier hearing. Appellant con
We now turn to our major task — a review of the factual determinations of the court below. We are entrusted with this duty of de novo review by the Act of May 19, 1879, P. L. 66, §1, 17 P.S. §1663 which provides: “In all cases of any proceedings in any court of this commonwealth against amy attorney of said court for unprofessional conduct as an officer of such court, said attorney shall be entitled to a writ of error from the supreme court of this commonwealth,
The charges confronting appellant stem from two separate petitions: (1) that of the Committee of Censors involving the alleged solicitation of two of appellant’s personal injury cases as well as a related charge of subornation of perjury; and (2) that of the Special Judicial Investigation involving the remaining charges which arise from some fifteen of appellant’s personal injury cases. As noted above, appellant was adjudged guilty of some thirty-five different charges, not including his failure to file some one hundred ten contingent fee agreements and twenty-one statements of distribution as required by Court Rule 202 of Philadelphia County. We have carefully reviewed the entire record of the proceedings below. Because of the large number of cases and charges involved in this proceeding, we shall not recount the evidence case by case or charge by charge. We shall, however, attempt to summarize the evidence as a whole while noting specifically the basis for any disagreements with the lower court’s findings.
At the outset, it should be noted that appellant did not deny the charges of advancing money to clients in violation of DR 5-103(B) and the late filings in violation of Rule 202. His arguments in justification of these violations are unpersuasive and accordingly, we shall not disturb the lower court’s determination on these points,
With regard to the charges in the Committee of Censors’ petition — that appellant solicited the cases of Clarice Palmer and Viola Woodland and that he suborned the perjury of Viola Woodland both at trial and in an affidavit — we cannot concur with the findings of guilt below. The charges of solicitation arise from events which occurred in 1963, some nine years prior to the hearing in this case. Likewise, the alleged perjury, to which the subornation charges refer, relates to these same events. The Committee’s evidence rested heavily on the testimony of the two former clients. We find the testimony of these two witnesses to be confused, uncertain, and unworthy of belief. Although the witnesses’ confusion is somewhat explainable by the lapse of time, this does not make their uncertain testimony any more reliable.
Turning to the charges contained in the petition of the Special Judicial Investigation, our first point of disagreement with the court below is its finding of guilt as to the charge of submitting false medical bills in the case of Ernestine McCullough. The fact that the witness admitted lying to the defendant’s doctor regarding the number of visits because she "figured if [she] told him that that [she] Avould probably get more money out of the accident” raises a strong possibility that she may also have lied to appellant for the same reason when he was preparing her claim. Therefore, we are unwilling to accept this charge as a basis for the sanction imposed.
With respect to the case of Pearl McNeil, we are not convinced of appellant’s guilt as to the charge of solicitation. The client’s testimony indicates that Mr. Batt, appellant’s associate, visited Mrs. McNeil in her capacity as a possible witness in the case of her sister’s estate. At the close of that conversation, Mrs. McNeil asked Mr. Batt to represent her since he was already representing her brother-in-law in his capacity as administrator of his wife’s estate. We are not convinced that a finding of solicitation is merited on these facts.
Our doubts, however, do not extend to the related charge of filing a false retainer agreement listing Mrs. McNeil’s brother-in-law, Lenwood Butler, as the referring party. Although there may not have been any devious motive for listing Mr. Butler as the referring party, there is no question that this information was inaccurate since Mrs. McNeil had not spoken to Butler about retaining any larvyer prior to Mr. Batt’s visit. Thus, we affirm the filing false retainer agreement charge although the significance of this charge is reduced by our inability to find the accompanying solicitation in this case.
With regard to the remaining charges, however, we are in agreement with the findings of the disciplinary court. As noted above, we are not discussing each of these remaining charges in detail, but are merely attempting a general discussion of each class of charges.
As to the twelve remaining charges of solicitation through runners, the evidence viewed as a whole reveals a pattern of runners and wreclc-chasers soliciting the personal injury claims of automobile accident victims for appellant.
We now turn to the ten charges of filing false contingent fee agreements. Philadelphia Common Pleas Court Rule 202(f), which requires every attorney entering into a contingent fee agreement to file a copy thereof Avith the Prothonotary, also requires a signed statement by the client listing the name and address of the person who recommended the attorney. In each of these cases, the client testified that the referral information was false. In several cases, the referral statements were in appellant’s own handwriting. In other cases, they were filled out by appellant’s associate. With respect to these latter instances, appellant strenuously objects to any finding of culpability, arguing that he had no knowledge of these actions. Nevertheless, as noted above, the drawing of reasonable inferences in disciplinary cases is quite appropriate and we agree with the disciplinary court’s inference of knowledge on appellant’s part with regard to these charges. We are particularly persuaded in this regard by the following argument found in the brief of the Special Judicial Investigation: “This was Berlant’s office, it was his practice, the profits were all his, all the retainers were in his name, he participated in all phases of the cases involved, and was exclusively
The only charges left to be considered are the two counts of impeding the court’s investigation in violation of DR 1-102(4) and (5).
In summation, the findings of guilt are sustained as to the following charges: twelve counts of solicitation; ten counts of filing false contingent fee agreements; two counts of impeding the court’s investigation ; five counts of making improper advances to clients; and failure to comply with Philadelphia County Court of Common Pleas Rule 202 with respect to some one hundred ten contingent fee agreements and some twenty-one statements of distribution. On the basis of these charges, notwithstanding our disagreement with several of the Disciplinary Court’s findings, we cannot say that the sanction imposed below is unduly harsh. Through these numerous violations of the Code of Professional Responsibility’s Disciplinary Rules, appellant has dishonored the legal profession. Nevertheless, the court below, mindful of appellant’s
Accordingly, the order of the Disciplinary Court, suspending appellant from the practice of law for a period of five years, is hereby affirmed. Appellant to pay costs.
On May 3, 1973, we granted appellant’s Petition for Supersedeas, thereby staying that order pending final disposition of this appeal.
Although this section has been suspended by Bule 17-24 (a) (5) of this Court, Bule 17-25 provides that Bules 17-1 to 17-24 shall not apply to “any special judicial investigation in existence at the time of the adoption of these Buies, which, together with any disciplinary proceedings arising therefrom, shall be concluded under the procedure established for the conduct of such investigation.”
Even counsel’s question does not refer to a Fifth Amendment assertion. After appellant denied ever having given compensation to anyone for referring a case to him, counsel asked: “Do you recaU being asked that same question before Judge Shoyer? Page 9.” Objection was immediately taken at that time.
Spevack held that the privilege against self-incrimination extends to disbarment proceedings and that an order of disbarment based on petitioner’s assertion of that privilege must be reversed. Not even the broadest reading of this decision would suggest that reversal is required in the absence of prejudice. Moreover, the fact that the privilege against self-incrimination was never even invoked in this proceeding renders Spevaek totally inapposite.
Appellee also argues that this questioning would have been proper since it was being utilized to impeach appellant by showing a prior inconsistent statement Since the objection was sustained below at the outset, we do not even reach this question.
See note 2 supra.
Appellant attempts to justify bis advances on the basis of the client’s indigency, since the money was generally used for rent, food, and other necessities. While this may be a mitigating factor when considering the sanction, it is irrelevant to the commission of the offense itself under DR 5-103(B).
Appellant attempts to justify his noncompliance with Rule 202 on the ground that the retainer agreements were, being used to
Clarice (Palmer) Chambers repeatedly admitted a “blurred mind” with respect to the events of 1963. Viola Woodland had similar problems. In addition, both witnesses were caught in numerous inconsistencies, not only with respect to prior hearings and events hut between their present testimony and that of a few minutes earlier. Upon reading all the testimony by these two witnesses, one must certainly come away with a general feeling of the witnesses’ confusion and uncertainty.
James Ghilyard, an admitted solicitor of business for auto body shops, was identified by several accident victims and former clients of appellant as the person who solicited their respective cases, either at the scene of the accident or at the victim’s home within a few days of the accident. Wilbur Allen was identified as a solicitor by several other victims. In the other cases, the parties making the initial solicitation included anonymous callers, unidentified runners, and in one instance, Ghilyard’s wife.
DR 1-102(4) prohibits a lawyer’s engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. DR-102 (5) prohibits conduct which is prejudicial to the administration of justice.
Concurrence in Part
Concurring and Dissenting Opinion by
I concur in the majority’s finding of guilt on the charges of attempting to solicit perjury and of improperly advancing living expense money to clients. My concurrence on the latter charge is based solely on the evidence indicating that the purpose of one “loan” was not simply to enable an indigent client to withstand the rigors of a possibly protracted litigation, but was designed to (and did) influence the client— who had already retained other counsel — to dismiss his attorney and retain appellant. I concur in the court’s finding that appellant failed to comply with Philadelphia Court Rule 202, regarding the filing of contingent fee agreements, but I do so for reasons not discussed in the majority opinion. These reasons will be explained later in this opinion.
I dissent from the finding of guilt for making advances to clients in those cases where the advances were made after the persons had become appellant’s clients. I dissent from the finding of guilt on the charges of filing false contingent • fee agreements because the evidence is insufficient to sustain the charge.
I also dissent from the court’s finding of guilt for “solicitation.” NAACP v. Button, 371 U.S. 415, 9
Although NAACP v. Button, supra; United Mine Workers of America v. Illinois State Bar Association et al., 389 U.S. 217, 19 L.Ed.2d 426, 88 S. Ct. 353 (1967); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 12 L.Ed.2d 89, 84 S. Ct. 1113 (1964); United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 28 L.Ed.2d 33, 91 S. Ct. 1076 (1971), have addressed themselves to the issue of collective activity designed to apprise potential clients of their legal rights there is no reason to believe that the scope of the First Amendment protections depends on whether the individual being solicited is in the company of his friends and associates.
The record in this case does not indicate that appellant ever paid money in exchange for recommendations by those who allegedly acted as “runners” for him. Such activity would involve a fraud on the con
I believe that Philadelphiai Court Rule 202, as now worded, violates the equal protection clause of the Fourteenth Amendment. Rule 202(f) requires that contingent fee agreements in death and personal injury actions, workmen’s compensation claims, or land condemnation proceedings be filed with the Prothonotary. By failing to require filing of all contingent fee agreements between an attorney and client, the rule offends the constitution.
Contingent fee agreements have long been the subject of concern to the courts. They have been subjected to careful scrutiny to see that no unfair advantage is taken of the clients’ position or lack of knowledge. Chester County v. Barber, 97 Pa. 455 (1881). The object of such court scrutiny is to prevent injury to the client, to proscribe a relationship subject to abuse by the attorney. The cases considering the validity of contingent fee agreements make no distinction as to the subject matter of the litigation taken pursuant to the agreement. Likewise, Rule 202 of the Pennsylvania Rules of Civil Procedure, in requiring contingent fee agreements to be in writing, applies to
The potential for abuse is present in all contingent fee agreements between a lawyer and client. It is not peculiar to personal injury, workmen’s compensation, or land condemnation suits. Rule 202(f) unreasonably discriminates between the named cases and other contingent fee agreements, and, as such, is unconstitutional. I believe, however, that the offensive provision is severable and can be stricken from the Rule. The Rule would then require that all contingent fee agreements be filed. I therefore concur that appellant’s failure to comply with the rule warranted the court’s finding of guilt for such failure to comply.
I would remand for reconsideration of the discipline.
