Opinion
D.D. No. 19
Decided December 6, 1961.
Attorneys at law — Indefinite suspension from practice — Misconduct warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The relator, the Cleveland Bar Association, instituted this proceeding before the Board of Commissioners on Grievances and Discipline of this court against the three respondents, a father and his two sons, all of whom were duly admitted to the practice of law in this state and have been so engaged as partners.
The complaint reads in part as follows:
"Relator further states that said Aaron Fleck, Charles Fleck and Sidney Fleck, individually and as such partners, have each been guilty of misconduct within the meaning of paragraph 5 of amended Rule XXVII of the Supreme Court of Ohio, in the following respects:
"On or about November 25, 1957, the respondents entered into a written agreement with Truck Drivers' Union Local No. 407 wherein and whereby the respondents agreed to represent the individual members of said union as their attorneys in proceedings before the Industrial Commission of Ohio, and permitted and aided in the distribution of copies of said contract to the individual members of said union with whom they had no personal relations, said copies containing the telephone number of these respondents, for the purpose of soliciting professional employment from said individual members.
"That after the date of said contract, said respondents, appearing before the Industrial Commission of Ohio and presenting claims on behalf of diverse claimants as their attorneys, aided claimants in preparing and permitted and caused them to file papers with the Industrial Commission representing alleged indebtedness of claimants as bona fide, when said respondents well knew that said representations were false and that said indebtedness was incurred for the sole purpose of paying attorney's fees to these respondents. Relator further says that said respondents well knew that the compensation, the approval of which was sought from the Industrial Commission, would not have been paid on a commuted basis if the commission had been informed of the fact that it was for the payment of attorneys' fees to them."
Hearings were duly had before a special panel of three commissioners appointed by the chairman for that purpose.
Thereafter the matter was considered by the board on the pleadings, the evidence, the briefs of counsel and the report of the hearing panel. The board then filed with the court its findings of fact, its conclusions and its recommendation. The latter reads:
"The board of commissioners recommends that Sidney Fleck and Charles Fleck be given public reprimands and that Aaron Fleck, as the respondent most active in the aforesaid misconduct, be suspended indefinitely from the practice of law in Ohio, subject only to reinstatement as provided by Rule XXVII of the Supreme Court of Ohio."
The matter is now before this court for consideration of the board's recommendation.
Mr. Paul J. Gnau, Mr. Paul Mancino and Mr. Burt J. Fulton, for relator.
Mr. David I. Sindell, for respondents.
Counsel are agreed that this matter is before the court de novo for consideration of the evidence and the recommendation of the Board of Commissioners on Grievances and Discipline.
Fortunately many of the controlling facts are not in dispute.
The conclusions of the board read as follows:
"1. Aaron Fleck, Sidney Fleck and Charles Fleck are guilty of misconduct within the meaning of paragraph 5 of amended Rule XXVII of the Supreme Court of Ohio, in the following respects:
"a. In that they, as partners, wilfully entered into a written contract as heretofore set forth with Local 407 of the Teamsters Union, Cleveland, Ohio, on or about November 25th, 1957, which contract constituted an employment by a labor organization under which legal services would be rendered to the members thereof in respect to their individual affairs, and constituted a seeking out of those with claims for personal injuries in order to secure them as clients, contrary to Canons 27, 28, 29 and 35 of the Canons of Professional Ethics.
"b. In that they, as partners, by entering into said written contract with a labor union wilfully caused a system of referrals to be created in order to carry out the purposes of the contract, whereby said respondents obtained others, to wit: the officers and employees of said union, as touters, to solicit and obtain professional employment for them, by referring union members to said respondents for counsel and assistance in their individual affairs, to wit: personal injury claims under the workmen's compensation laws, contrary to Canons 27, 28, 29 and 35 of the Canons of Professional Ethics and Rule XXVIII, Section 3, of the Supreme Court of Ohio.
"c. In that they, as partners, by entering into the aforesaid contract with a labor union did breed litigation by seeking out persons having personal injury claims under the workmen's compensation laws as clients, contrary to Canon 28 of the Canons of Professional Ethics.
"2. Aaron Fleck is guilty of misconduct within the meaning of paragraph 5 of Rule XXVII of the Supreme Court of Ohio in that he solicited professional employment by personal communications to the members of said union local 407 in meeting assembled for the purpose of securing the execution of said employment contract by the union, whereby he would render the members legal services in their individual affairs, the same not being warranted by his personal relations with said members, contrary to Canon 27 of the Canons of Professional Ethics.
"3. The respondents are not guilty of misconduct relating to the alleged making of fraudulent claims and statements to the Industrial Commission of Ohio."
As held by this court in the fifth paragraph of the syllabus of In re Disbarment of Lieberman, 163 Ohio St. 35, "the degree of proof required in a disbarment proceeding is a preponderance of the evidence."
Are the charges against these respondents sustained by a preponderance of the evidence in this record?
Conclusion No. 1 of the board, supra, relating to the purpose of the admitted contract with the union, is based on several findings of fact, five of which read as follows:
"23. The board finds that the respondents, Aaron Fleck, Charles Fleck and Sidney Fleck, at the execution of said contract, anticipated that the availability of their `free services' and preferential rates would be brought to the attention of the members of local 407 by union officers and would result in many such members consulting them and then employing them on a fee basis, the same being their motivation for making said contract.
"24. Sillins, in preparing the contract, anticipated that there would arise out of the preparation by Fleck and Fleck of the C-1 and C-3 forms, many calls for services which would require claims for permanent partial disability and permanent total disability. The board finds that the respondents had the same anticipation.
"25. Sillins understood that by said contract local 407 assumed the responsibility of sending over to the Fleck and Fleck office, members requiring service. The board finds that the respondents had the same understanding.
"26. Sillins understood that the availability of free law service to the union members was to be mentioned to them by a bulletin to be circulated by the union. The board finds that in making the contract, the respondents had the same anticipation.
"27. Sillins understood that calls and inquiries of union members would thereupon be referred to Fleck and Fleck. The board finds that the respondents had the same understanding at the execution of the contract. Such a reference would be necessary to make the service available to the union members and give effect to the contract."
A study of the evidence in the record clearly sustains the finding and conclusion of the board. The mailing of copies of the contract to the 8,000 union members was done for the unmistakable purpose of soliciting professional employment, and that purpose was accomplished. The board was correct in finding that "all of the respondents, with full knowledge of the contract, received and enjoyed the benefits accruing therefrom to the partnership following its execution and that no partner repudiated the same but by their respective conduct ratified and approved its execution."
With reference to the further charge of false representations by the respondents before the Industrial Commission of Ohio for the purpose of obtaining advance payment of attorney fees, this court reaches a conclusion different from that of the board.
In its finding No. 10, the board expressed the opinion that the so-called C-32 applications for lump-sum awards probably would have been allowed even if the respondents had disclosed to the Industrial Commission the true nature of the transactions, namely, that the loans had been negotiated for the sole purpose of advancing the payment of attorney fees to the respondents. This finding of the board seems to be based on the speculative testimony of one of counsel for the commission who was recalled as a witness by the panel and not by the parties over the objection of the relator and was permitted to so testify although Section 4123.57 (B) (126 Ohio Laws, 1015, 1029) provided that "in the event compensation is commuted for the purpose of paying fees for services rendered in the prosecution of a claim the commission shall, after hearing, fix the amount of such fees." Furthermore, a former member of the commission testified:
"Our inquiry determined, Sir, that these fees were not being paid in the best interest of the claimant but through subterfuge being paid to Mr. Fleck and getting around our 4123.57B. In other words, he was not filing for fees under 5-B, but loan applications as subterfuge to get fees to circumvent a hearing by the commission to determine whether or not a fee or how much of a fee should be paid."
Patently there was nothing innocent or unintended in the results of the efforts of the three respondent partners. The scheme of having each of their workman's compensation clients borrow money was a deliberate, simple and effective device enabling them to secretly grasp fees in greater amounts and in less time than provided by law.
The handling of disciplinary matters is an unwelcome and unpleasant task for members of the Bench and Bar, but if any semblance of an ethical profession is to be maintained, the responsibility therefor is clear and inescapable. These three partners "did breed litigation," and all three "received and enjoyed the benefits accruing * * * to the partnership." Under these circumstances the members of the court see no other course than to find all three respondent partners guilty as charged and to order them suspended indefinitely.
Respondents ordered suspended forthwith.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.