Attorney Grievance Commission v. Nothstein

SMITH, Judge. In this case we shall disbar an attorney who obtained in excess of $40,000 from his law firm by submitting false expense claims. Bar Counsel, acting pursuant to the provisions of Maryland Rule BV9 on behalf of the Attorney Grievance Commission, filed a petition with us seeking disciplinary action against Gary Zane Nothstein, a member of the Bar of this Court since December 14, 1973. The petition alleged misconduct or “in the alternative that Respondent is incompetent as that term is defined by Rule BVl(h) ....” It was asserted that Nothstein violated Disciplinary Rule 1-102(A)(3), (4), (5) and (6). 1 ⁶⁷⁰ I Pursuant to Rule BV9(b) we referred the matter for hearing to a judge of the Eighth Judicial Circuit of Maryland.

She filed with us comprehensive findings of fact. The factual pattern pertaining to Nothstein’s activities is not in dispute. He was an associate and later a partner in a law firm. He apparently lived beyond his means.

He was not satisfied with his compensation as an associate or, subsequently, as a partner. 2 He was engaged in writing a text on an aspect of labor law, the profits from which under his agreement with the firm would accrue to the firm. According to his contract with the publishers he was to be reimbursed for expenses only upon completion of the book. He believed, however, that he should be reimbursed sooner. For all of these reasons he conceived and carried out a scheme by which false vouchers for expenses were submitted and he was reimbursed by the firm.

Although he asserts that he never at any time intended for clients to be billed for such expenses, some clients were billed, to the embarrassment of the firm. Some of the charges were to fictitious files. Although Nothstein does not contest these factual matters, we observe that there was clear and convincing evidence to support the trial judge’s findings. Evidence before the trial judge consisted of the exhibits before the inquiry panel as well as the transcript; testimony of Dr. Jonas R. Rappeport, Chief Medical Officer of the Circuit Court for Baltimore City, who examined Nothstein at the instance of the Attorney Grievance Commission; and testimony of Nothstein himself.

Dr. Nelson Hendler testified on Nothstein’s behalf at the hearing before the inquiry panel. The summary of both psychiatrists’ testimony was contained in the report of the trial judge as follows: ⁶⁷¹ “Dr. Nelson Hendler, a licensed physician in the State of Maryland and a certified psychiatrist by the American Board of Psychiatry, first saw the Respondent on October 22, 1982 in his office at Johns Hopkins Hospital. He observed that the Respondent displayed signs of anxiety and reported vegetative signs of depression. He prescribed a course of treatment for the Respondent and has seen his patient at least once a week and sometimes twice a week for a total of approximately 15 times.

H; H; H« * H* “At the hearing, Dr. Hendler testified that, based solely on the information the patient provided and his observations of the patient, the Respondent, because of his various difficulties, was ‘experiencing a very severe reactive depression, bordering on neurosis.’ The behavior exhibited in his two suicide attempts was ‘juvenile-like with retrographic and regressive infantile.’ His retaliation against the firm was infantile. Dr. Hendler’s ultimate diagnosis was a condition similar to kleptomania. He made an analogy between kleptomania and sociopathic behavior. A thief steals for his own needs and utilizes his gains for those needs.

He is usually of a lower socio-economic class and will attempt to cover up his crime and deny guilt. On the other hand, the kleptomaniac is usually well-educated and of a higher socio-economic class. He either has no use for the gains of his theft and applies them to frivolous things, as he believes the Respondent did for the purpose of retaliating against the firm because of a sense of entitlement. These factors are manifestation of kleptomania.

Such individuals freely admit guilt and almost want to be punished. Kleptomaniacs act under compulsion and engage in stealing as a way of reducing anxiety, rather than with real criminal intent. Dr. Hendler conceded that there is very little medical material on the subject of kleptomania and that there is no diagnostic term per se for the Respondent’s condition. Like other persons who exhibit compulsive behavior, such as those suffering from anorexia nervosa, bulimia, or ⁶⁷² pathological gambling, Dr. Hendler believes the Respondent will respond to intense individual psycho-therapy.

It was his recommendation that the Respondent be hospitalized immediately after the Inquiry Panel hearing for a month or two followed by therapy for approximately two or three years. He felt that his patient should obtain gainful employment, preferably as an attorney, and, if not, then in a position which would not entail financial responsibilities nor require supervision of his work, since he has difficulty dealing with authority. He also acknowledged the Respondent apparently has a problem with telling the truth, at least with his wife and with authority figures. The Respondent conceded this but avows he is presently truthful. * * * * * # “To supplement the Petitioner’s case, the testimony of Dr. Jonas Rappeport, Chief Medical Officer of the Medical Office of the Circuit Court for Baltimore City was offered in evidence and a copy of his curriculum vitae was entered as an exhibit.

Based on information from a partner at Venable, the Respondent’s wife, a review of Dr. Hendler’s report and the transcript of the proceedings before the Inquiry Panel, conversations with Dr. Hendler and Dr. Sollod [who saw Respondent in Denver], his interview with the Respondent whereby he obtained a history and performed a mental status examination, Dr. Rappeport formulated a diagnosis of the medical condition of the Respondent.[ 3 ] It was his opinion that the Respondent was suffering from a narcissistic personality disorder, in a category of personality disorders which represent a characterological exaggeration of otherwise ⁶⁷³ normal or average human traits to the extent they control individual behavior. He explained that everyone is somewhat obsessed or compulsive. It is necessary in order to be a good lawyer, judge, doctor or court reporter. Such persons are careful, exact and precise.

If these traits become exaggerated, the person experiences an illness. These personality illnesses are characterologic; they do not occur suddenly but develop gradually over most of the years of a person’s life. Persons who suffer from this narcissistic personality disorder manifest such characteristics as a sense of self-importance, some grandiosity, a pre-occupation with achieving great success, and a tendency toward exhibitionism by showing off, for example by dressing exceptionally well and expensively, because of a need for attention and admiration. Additional manifestations include some indifference to other people’s feelings, an inability to relate to other people in a very meaningful manner, some sense of entitlement, a tendency to exploit others in interpersonal relationships, a tendency to see-saw between overidealization of an individual and denigration or devaluation of that individual, and a lack of empathy.

It was Dr. Rappeport’s belief that the Respondent has displayed these characteristics over his lifetime, which developed in intensity as he grew older. There was no evidence that the Respondent was psychotic at any time or lost the ability to test reality to know what he was doing was wrong. It was Dr. Rappeport’s conclusion that the Respondent was aware that what he was doing was wrong. He was aware he shouldn’t do it, and although he had a strong desire to do it, nevertheless, in the usual free will concept, he could have stopped, either directly or sought professional help.

He was aware of the options. He further explained that although a person may feel compelled to do something, that does not mean he cannot control what he does. It was Dr. Rappeport’s belief that if, indeed, the Respondent’s basic personality problems can be adequately treated, he would require long term (two, three, four years), regular psychotherapy ⁶⁷⁴ preferably of a very intense type (several times a week or at least once or twice a week). Dr. Rappeport doubts anybody truly recovers from such a diagnosis and his prognosis of the Respondent’s recovery is' guarded.

Because the Respondent’s condition has developed over a long period of time, it will be very difficult for him to change. While he may be presently motivated to change, Dr. Rappeport believes it will be very hard for the Respondent to maintain his motivation when there isn’t a club over his head. Although court imposed conditions may provide motivation in the short run, Dr. Rappeport did not feel the motivation would endure over the long run. The doctor concludes that there is only a twenty-five to thirty-five percent chance that there will be a major change in the Respondent’s personality. “While he questioned whether the Respondent could be trusted in any phase of the practice of law, Dr. Rappeport thinks the Respondent could teach and should work.

The fact that the Respondent had been voted best professor by his class is compatible with the diagnosis because the Respondent is a showman and no doubt intelligent. The students would like him. It would be expected for a person with the Respondent’s difficulties to be suicidal, that is, to entertain the thought but, Dr. Rappeport would not expect the Respondent to actually commit suicide. “The doctor finally opined that the Respondent is competent, understands the nature and object of the proceedings against him- and can assist counsel in his defense. When advised of the definition of incompetence, set forth in Md. Rule BV1, h, he concurred that the Respondent is probably incompetent within the meaning of the Rule.

However, the import of his testimony was not that the Respondent is unable to render adequate legal service because of his mental illness, rather it was that the Respondent is unable to render adequate legal service because he is untrustworthy due to his personality and character.” The trial judge made the following conclusions of law: ⁶⁷⁵ “There can be no question that the actions described in this case constitute misconduct within the meaning of DR 1-102(A)(3), (4), (5), and (6). The fact that most of the misdeeds were directed against the law firm of which the Respondent was a member rather than against clients does not ameliorate the conduct. Attorney Grievance Commission v. Silk, 279 Md. 345, 347-348 [ 369 A.2d 70 ]; Maryland State Bar Association v. Agnew, 271 Md. 543, 550 [ 318 A.2d 811 ]. “Indeed, the Respondent concedes the acts, in and of themselves, amount to misconduct. He maintains, however, that because of his mental incompetency, he was not able to control his behavior nor form an intent to commit the wrongs.

In order to determine whether the Respondent is incompetent within the meaning of Maryland Rule BY1, h, the totality of the evidence must be considered, since the conclusion of the issue of incompetence is a legal one, not a medical one. There is no proof from any source to suggest that the Respondent is unable to form an intent. The only question is whether he is suffering a mental illness which prevents him from being capable of controlling his conduct. In this regard, it is concluded that the opinion of the Petitioner’s expert is the sounder of the two, although both impart a sense of two trains on separate tracks coming into the same station.

Basically, the two agree that the Respondent’s personality traits contributed to the commission of the cited improprieties. The principal divergence is whether his mental condition prevented him from being able to master his activity. The proof offered by the Respondent was not clear and convincing that he was so mentally ill that he could not control his conduct. Attorney Grievance Commission v. Burka, 292 Md. 221 [ 438 A.2d 514 ], The reasoning of the Petitioner’s expert witness is more credible.

Weighing his opinion together with all of the other evidence produced leads to the conclusion that the Respondent had the capacity to control his behavior and, therefore, is not ⁶⁷⁶ incompetent within.the language and intent of Maryland Rule BV1, h.” Nothstein excepts to the trial judge’s finding that he “was able to control himself with regard to the acts upon which the charges were based.” He objects to the fact that the judge “elected to rely exclusively upon the testimony of the State’s [sic] expert, Dr. Jonas R. Rappeport.” This objection is based on the fact that “Dr. Rappeport was not the respondent’s treating physician, and had not spent as much time with the respondent as had the treating physician, namely, Dr. Nelson Hendler” and on the fact that “Dr. Rappeport’s opinion was based in part on inadmissible hearsay, to which the respondent objected at the hearing.” Nothstein further excepts to the finding that he “was unable to render adequate legal service not because of mental illness,” but because “he is untrustworthy due to his personality and character.” Further exception is taken to the conclusion of law that his actions constituted misconduct within the meaning of DR 1-102(A)(3), (4), (5) and (6), it being asserted that “[t]he totality of the evidence adduced at the Inquiry Panel hearing and the hearing before the trial court, which considered all of the evidence adduced at the panel hearing, showed that the respondent was not in control of his actions during the time period when he engaged in a reckless scheme which was bound to fail and which had to have the ultimate consequence of destroying the scheme’s perpetrator.” Nothstein recommends that we “not disbar or otherwise punish him for willful or intentional violations of the Disciplinary Rules, but rather find that he was incompetent to practice, law and that he should be placed on inactive status until such time as approved medical experts certify to [us] that [he] has recovered from his mental and emotional disorder to such an extent that he is competent to practice law.” II We first consider Nothstein’s contention that “Dr. Rappeport’s opinion was based in part on inadmissible hearsay, to which the respondent objected at the hearing,” ⁶⁷⁷ because elimination of that opinion, upon which the trial judge relied, would undermine certain findings of the trial judge. At the hearing Dr. Rappeport indicated that he had before him a large packet of material consisting of the transcript of the hearing before the inquiry panel which included the testimony of Dr. Hendler and a packet of correspondence from Dr. Hendler. He further said that one of his assistants interviewed Mrs. Nothstein and another had talked with one of the partners of the law firm with which Nothstein was connected. When Dr. Rappeport was asked to give his opinion of the mental condition of Nothstein counsel immediately said he “would object to the opinion being rendered on the grounds as being rendered on matters that are not in evidence, and that are hearsay.

For example, statements by Mr. Nothstein’s wife.” At this point the trial judge asked Dr. Rappeport upon what he based his opinion. He replied: “I believe, Your Honor, on all of the material that I had available to me. I would not want to completely try to eliminate the additional information of Dr. Maktari [who interviewed Mrs. Nothstein]. I might have obtained it myself, but it was more convenient to have him obtain it, that is, to interview Mrs. Nothstein merely to verify and confirm some things that we believe existed, and some things that I had some question about, the conclusions of [sic] Dr. Hendler had made.

He had made certain conclusions from information Mr. Nothstein had given him, and based, it seemed, his opinion on that. And I believed that those conclusions were not accurate. I therefore decided as one does in forensic work to obtain as much additional information as we could by speaking to family and friends and what have you. It was not necessary to go further than to get some information from Mrs. Nothstein.

I think that, I probably would have formed the same diagnosis without that information but be less sure of it. So I think that was an integral part.” ⁶⁷⁸ The trial judge overruled the objection. Each time Dr. Rappeport was asked for an opinion the objection was renewed. In considering this problem it is important to bear in mind that Dr. Rappeport said as to his procedure he “decided as one does in forensic work____” It will be noted that in her memorandum the trial judge recognized the objection that had been raised to the admission of the Rappeport opinion.

She said, “Trend is for admission of such testimony” and cited E. Cleary, McCormick’s Handbook of the Law of Evidence § 15 (2d ed. 1972). That work in discussing the opinion of experts based upon reports of others states: “The essential objection seems to be that the jury is asked to accept as evidence the witness’ inference, based upon someone’s hearsay assertion of a fact which is, presumably, not supported by any evidence at the trial and which therefore the jury has no basis for finding to be true. Moreover, want of the knowledge-qualification may be asserted. Should these objections still prevail when the witness is asked to give a similar direct (not hypothetical) opinion, on the basis not merely of reports of this kind, but of these reports supplemented by the witness’ own observation of the person or situation in question?

Probably many courts would apply the same reasoning, and exclude the evidence under a variety of circumstances, but there is a strong trend toward a contrary view. It is reasonable to assume that an expert in a science is competent to judge the reliability of statements made to him by other investigators or technicians. He is just as competent indeed to do this as a judge and jury are to pass upon the credibility of an ordinary witness on the stand. If the statements, then, are attested by the expert as the basis for a judgment upon which he would act in the practice of his profession, it seems that they should ordinarily be a sufficient basis even standing alone for his direct expression of professional opinion on the stand, and this argument is reinforced ⁶⁷⁹ when the opinion is founded not only upon reports but also in part upon the expert’s first-hand observation.

The data of observation will usually enable the expert to evaluate the reliability of the statement.” Id. at 34-36. 3 J. Wigmore, Evidence in Trials at Common Law § 688 (Chadbourn rev. 1970) states: “As to hearsay symptoms told by third persons, a diagnosis based on sundry information from third persons in general has no claims for admission. “But where the information is that of an attending nurse or physician having personal observation and an interest in learning and describing accurately, there seems every reason for admitting testimony based in part on this. Every physician relies upon it,