Attorney Grievance Commission v. Klauber

Smith, J., delivered the opinion of the Court. Gilbert, J., filed an opinion concurring in the result at page 600 infra. Okth, J., filed a dissenting opinion at page 603 infra. Bar Counsel acting on behalf of the Attorney Grievance Commission of Maryland filed a petition on June 28, 1978 seeking suspension of Respondent, Gerald Ney Klauber, under Maryland Rule BV16 as then in effect.

This suspension was sought by virtue of the final judgment entered in the United States District Court for the District of Maryland on June 22, 1978 convicting Klauber of violating 18 U.S.C. ⁵⁹⁸ § 1341 , mail fraud, and 18 U.S.C. § Í962, racketeering. He has appealed this conviction. Rule BV16 as it then existed provided that we might suspend an attorney, pending our further order, who was convicted of a crime involving moral turpitude, with further provision as to the procedure to be followed upon the completion of any appeals the attorney might have filed. In Attorney Grievance Comm’n v. Reamer, 281 Md. 323 , 379 A. 2d 171 (1977), Chief Judge Murphy said for the Court: “We need not decide in this case whether a conviction for mail fraud, in any and all circumstances, will always involve moral turpitude.

It is enough that we determine in this case, from a review of the allegations of the indictment and the District Court’s charge to the jury, and the jury’s verdict, that the crimes of which Reamer was convicted plainly involved moral turpitude.” Id. at 328 . In that case the jury instructions made it abundantly clear that to convict the jury must find that acts were committed with an actual intent to defraud. We said: “The jury’s finding of guilt of mail fraud and aiding and abetting in a mail fraud under these instructions, in light of the allegations of the indictment that he procured false and fraudulent medical reports and bills, clearly indicates that Reamer’s convictions involved moral turpitude within the contemplation of Rule BV16.” Id. at 329-30 . The instruction to the jury in this case apparently did not limit a conviction to a finding of moral turpitude as in Reamer .

The jury was told: “The Government has introduced evidence which it claims shows that the defendant paid individuals known as runners and MTA bus drivers moneys in exchange for those individuals referring to him clients who had been injured in automobile and bus ⁵⁹⁹ accidents. The use of such individuals is relevant in this case if you find that the procurement of clients by such persons was part of the scheme as alleged in the indictment. “The law of the State of Maryland prohibits an attorney from compensating or agreeing to compensate another person for procuring clients. Furthermore, the Code of Professional Responsibility which applies to attorneys practicing in the State of Maryland provides in part as follows: ‘A lawyer should not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client. Likewise, a lawyer shall not accept employment when he knows or it is obvious that the person who seeks his service does so as a result of conduct described herein.’ “If you should find that as a part of a scheme to defraud, the defendant paid certain individuals for the purpose of procuring as clients persons who had been involved in automobile and bus accidents, and if you should further find that the defendant knew or should have known that such payments were violations of Maryland law or violations of the Code of Professional Responsibility applicable to Maryland lawyers, then you may consider such violation as evidence of the intent with which the defendant acted in this case.” It may follow from this instruction that the jury could have found Klauber guilty without finding an intent on his part to defraud.

His appeal is still pending. Hence we cannot say at this point in time, particularly before the Fourth Circuit speaks, that Klauber necessarily stands convicted of a crime involving moral turpitude. It must be borne in mind that Rule BV16 does not make suspension mandatory, but makes it discretionary in this ⁶⁰⁰ Court pending resolution of an appeal. In such a proceeding we do not have a full record before us.

There has been no testimony adduced under Rule BV10, and hence no finding of fact under Rule BV11, as to whether moral turpitude was involved. Since suspension under Rule BV16, as it was then worded, could occur only upon conviction of a crime involving moral turpitude and, under the same rule, we were dealing with suspension as a preliminary matter, without a full record, we held as we did in Reamer because our preliminary determination awaited final resolution of the moral turpitude issue upon appellate review of the conviction. It was our intention in Reamer under the rule as it then existed to make plain that we would not — and should not — suspend unless it was absolutely clear that the crime involved moral turpitude. In Reamer we came to recognize the difficulties inherent in this rule involving moral turpitude.

It was for that reason that on May 5, 1978, effective July 1, 1978, we amended Rule BV16 to permit suspension of an attorney upon conviction of certain crimes which include a conviction “in any federal court of a felony, unless the same crime also is a crime under Maryland law and is not a felony----” The petition is denied. In denying the petition in this instance we do not pass upon whether Klauber would be subject to suspension upon the timely filing of a petition under the revised Rule BV16 since the matter is not before ,us. It is so ordered. Gilbert, J., concurring : If we were writing on a clean slate, I would have no hesitancy in joining in part in Judge Orth’s dissent.

As it is, however, I believe we are bound by this Court’s recent decision in Attorney Grievance Commission v. Reamer, 281 Md. 323, 328 (1977), wherein a unanimous Court said, “We need not decide in this case whether a conviction for mail fraud, in any and all circumstances, will always involve moral turpitude. It is enough that we determine in this case, from a review of the allegations of the indictment and the District Court's charge to the jury, and the jury’s verdict that the ⁶⁰¹ crimes of which Reamer was convicted plainly involved moral turpitude.” (Emphasis supplied.) I know of no other way to interpret that language than to construe it to mean exactly what the majority says it means. We are, therefore, in the instant case, bound to look to the jury charge as given by the Judge of the United States District Court for the District of Maryland to the Klauber trial jury: “The law of the State of Maryland prohibits an attorney from compensating or agreeing to compensate another person for procuring clients. Furthermore, the Code of Professional Responsibility which applies to attorneys practicing in the State of Maryland provides in part as follows: ‘A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client.

Likewise, a lawyer shall not accept employment when he knows or it is obvious that the person who seeks his service does so as a result of conduct described herein.’ “If you should find that as a part of a scheme to defraud, the defendant paid certain individuals for the purpose of procuring as clients persons who had been involved in automobile and bus accidents, and if you should further find that the defendant knew or should have known that such payments were violations of Maryland law or violations of the Code of Professional Responsibility applicable to Maryland lawyers, then you may consider such violation as evidence of the intent with which the defendant acted in this case. However, as I have previously informed you, the defendant is not on trial in this case for any act or conduct not alleged ⁶⁰² in one of the counts of this indictment.” (Emphasis supplied.) Plainly, the hiring of “runners,” while a clear violation of the Canons of Professional Responsibility, Md. Rule 1230, is not a crime involving moral turpitude. Under that charge, if the jury believed the government’s case was weak, they may well have considered the employment of “runners” as evidence of fraudulent intent and thereby bootstrapped the government’s case to a strength it otherwise would not possess. Of course, I do not know that this is what happened, but as the majority makes clear, it could have happened, and that is enough to preclude a finding that “the crimes of which ... [Klauber] was convicted plainly involved moral turpitude.” Attorney Grievance Commission v. Reamer, 281 Md. at 328 .

I cannot, with any degree of reasonable certainty, state that the portion of the District Court judge’s charge dealing with the “runners” had no effect on the jury’s verdict. As I have earlier indicated, this is the conclusion to which I am propelled by Reamer . My basic quarrel is not with the majority’s reasoning in this case but with Reamer , which I would overrule, because in it I think the Court articulated a rule that it was absolutely unnecessary to promulgate, and in which it now finds itself enmeshed. Reamer was convicted of mail fraud, and whether that offense constituted moral turpitude should not have been the deciding factor.

Reamer should not have contained the phrase “and the District Court’s charge to the jury.” This Court should only look to the allegations of the indictment and the verdict of the jury thereon. We should not be in the position of evaluating the District Court Judge’s jury charge. That task the Congress wisely placed in the hands of the Fourth Circuit Court of Appeals. We should have left it there.

The Courts regulate the practice of law, Public Service Comm’n v. Hahn, Inc., 253 Md. 571 , 253 A. 2d 845 (1969). See also Lukas v. Bar Ass’n of Montgomery County, 35 Md. App. 442 , 371 A. 2d 669 (1977). The Court, as the regulator of persons who practice law in this State, owes a duty to the ⁶⁰³ public to remove from practice during the appeal process those attorneys who have been convicted of felonies in a trial court. It is true that convictions may be overturned on appeal, but in the meantime, what happens to litigants who employ the services of an attorney whose conviction is pending on appeal?

Does the lawyer quickly settle their case for far less than it is worth in order to make as much money as possible before the appellate decision is handed down? Does he “farm out” the case to other lawyers for a “brokerage fee” irrespective of the appellate decision? Does he, having been convicted of a crime and fearing affirmance on appeal, shortcut the Canons of Ethics so as to line his own pockets? Perhaps the lawyer would do all of those things, some of them, or none, but he should not be afforded the opportunity.

The same inherent and fundamental judicial power to act in proceedings involving the discipline of members of the bar employed in Maryland State Bar Ass'n v. Boone, 255 Md. 420, 429-32 , 258 A. 2d 438 (1969), and alluded to in In re Diener and Broccalino, 268 Md. 659, 685 , 304 A. 2d 587 (1973), cert. denied, 415 U. S. 989 (1974), should have been utilized in Reamer , Rule BV16 notwithstanding. Bound by the decision in Reamer , I reluctantly concur in the result reached by the majority. Orth, J., dissenting : I do not join the majority opinion in this proceeding because I believe that their conclusion flies directly in the teeth of reason, common sense and the record before us. On 21 April 1978 Gerald Ney Klauber, an attorney at law, was found guilty by a jury in the United States District Court for the District of Maryland of seventeen felonious offenses proscribed by the laws of the United States.

Sixteen of them concerned mail fraud, and the remaining offense was racketeering activity predicated upon mail fraud. See 18 U.S.C. § 1341 , § 1961 (1) (B), § 1961 (5) and § 1962. Promptly thereafter, on 2 May 1978, the federal court ordered that he be suspended from the practice of law before it pursuant to its Local Rule 2A (C), and that he show cause why he should ⁶⁰⁴ not be disbarred. He answered and to date no further action has been taken thereon.

On 22 June 1978 he was sentenced to five years imprisonment on each conviction, the terms of imprisonment to run concurrently. His appeal from the judgments is pending. The Attorney Grievance Commission of Maryland was created with authority to supervise and administer the discipline and inactive status of attorneys entitled to practice in the courts of this State. Maryland Rule BV 2 a.

Bar Counsel, appointed by the Commission, subject to approval of this Court, is the principal executive officer of the disciplinary system affecting attorneys. Rules BV 1 c and BV 4. Klauber had been admitted by this Court on 5 June 1959 to practice law in all the courts of this State. On 28 June 1978 Bar Counsel instituted proceedings to suspend Klauber from the practice of law pursuant to Rule BV 16 a as then in effect: “If an attorney is convicted in any judicial tribunal of a crime involving moral turpitude, whether the conviction results from a plea of guilty or of nolo .contendere or from a verdict after trial, and' regardless of the pendency of an appeal or any other post-conviction proceeding, the Bar Counsel shall file charges with the Court of Appeals alleging the fact of the conviction and requesting that the attorney be suspended from the practice of law.

A certified copy of the judgment of conviction shall be attached to the charges and shall be prima facie evidence of the fact that the attorney was convicted of the crime charged.” 1