ATTORNEY GRIEV. COMM'N OF MARYLAND v. Mandel

MURPHY, Chief Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Gary Steven Mandel, alleging violations of the Code of Professional Responsibility. The petition was based upon Mandel’s conviction on September 30, 1985 in the United States District Court for the District of Maryland of four violations of 21 U.S.C. § 843 (a)(3) (obtaining a Schedule II, Narcotic Controlled Substance by furnishing false and forged prescriptions.) 1 We referred the matter, pursuant to Maryland Rules BV16c and BV9b, to Judge Arrie W. Davis of the Circuit Court for Baltimore City to make findings of fact and conclusions of law. ¹⁹⁹ After conducting an evidentiary hearing, Judge Davis filed detailed findings and conclusions as follows. He found from the evidence presented that in 1982 Mandel experienced a recurrence of cervical pain which initially occurred in the mid-1960’s and had required two operations on his cervical spine.

Subsequently, Dr. Michael Salcman, Mandel’s physician, advised him that he would need another operation to ease the pain. The evidence showed that Mandel sought a second opinion from Dr. Thomas Carter who advised him that surgery was unnecessary and that the pain could be controlled by the prescription drug, dilaudid. Over a period of some 26 months, Dr. Carter wrote approximately 350 prescriptions for dilaudid (a total of 19,000 tablets). Mandel forged Dr. Carter’s signature on 8 prescriptions for dilaudid in August and September of 1984.

There was testimony before Judge Davis from Dr. William Lerner, a qualified expert in substance abuse and iatrogenic narcotic addiction, that “the drug dilaudid is one of the most potent prescription drugs known to medicine.” He testified that a dilaudid addict “would generally beg, borrow, steal and/or forge to avoid the pain of withdrawal.” Mandel testified, and Judge Davis found as a fact, that Mandel was addicted to dilaudid at the time he forged the prescriptions. Judge Davis said that he was “persuaded by the evidence that it was [Mandel’s] addiction to dilaudid which led to his criminal actions.” The addiction, Judge Davis said, was “caused in part by the massive doses prescribed by Dr. Carter.” He said that while the offenses involved fraud and were crimes of moral turpitude, they were not committed with scienter or intent to harm or deprive others but rather to fulfill the craving of one who was clearly addicted.” Judge Davis noted the testimony of Dr. Lerner that Mandel “was affected in the same manner as any drug addict and, hence, had little control over his actions.” Judge Davis concluded that Mandel’s convictions constituted violations of DR 1-102(A)(3), (4), (5) and (6): (A) A lawyer shall not: ²⁰⁰ (3) Engage in illegal conduct involving moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law. Bar Counsel took exception to Judge Davis’ conclusion that Mandel’s drug addiction induced him to forge the prescriptions. He attacks the evidentiary effect of Dr. Lerner’s testimony, claiming that it failed to establish the necessary causal connection because Dr. Lerner did not personally examine Mandel nor discuss his addiction with him. As a consequence, Bar Counsel suggests that Dr. Lerner necessarily left unexplained why Mandel sought detoxication on two occasions and otherwise conformed his conduct to law but was not able to refrain from forging the prescriptions.

At the same time, Bar Counsel recognizes that Mandel had an iatrogenic narcotic addiction to dilaudid at the time of his criminal conduct and that he was in a sense a victim of Dr. Carter’s negligent conduct. Bar Counsel also accepts the finding that generally an addiction to dilaudid could cause “an addict to beg, borrow, steal and/or forge to avoid the pain of withdrawal.” Nevertheless, contrary to the findings of Judge Davis, Bar Counsel asserts that Mandel did not meet his burden of establishing by clear and convincing evidence that his addiction induced or was, to a substantial degree, responsible for his conduct. Bar Counsel also maintains that it is paradoxical to accept Mandel’s position that his addiction caused the conduct upon which he was convicted but that he had authority from Dr. Carter to write the prescriptions. Bar Counsel recommends disbarment as the appropriate sanction for Mandel’s criminal misconduct.

We accept Judge Davis’ finding that Mandel’s criminal conduct was induced by his addiction to dilaudid. In his testimony,