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BERLANT APPEAL (10/16/74)

decided: October 16, 1974.

BERLANT APPEAL


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, No. D-20, in re Nathan Berlant.

COUNSEL

John Rogers Carroll, for appellant.

William P. Stewart, Special Counsel, for Special Judicial Investigation, appellee.

Daniel D. Murphy, with him Eric B. Henson, for Committee of Censors, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Nix took no part in the decision of this case. Concurring and Dissenting Opinion by Mr. Justice Manderino.

Author: Jones

[ 458 Pa. Page 440]

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.*fn1 The basis for that order was the court's finding of his guilt with regard to fifteen instances of improper solicitation of cases, ten instances of filing false contingent fee agreements, five instances of making improper advances to clients, two instances of impeding the court's investigation, two instances of submitting

[ 458 Pa. Page 441]

    false medical bills, one instance of subornation of perjury, and failing to make timely filings of one hundred ten contingent fee agreements and twenty-one statements of distribution. This matter is before us upon direct appeal pursuant to the Act of May 19, 1879, P. L. 66, § 1, 17 P.S. § 1663.*fn2

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 disbarrment -- 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).

[ 458 Pa. Page 442]

We now address appellant's questions relating to the type of evidence necessary to sustain certain charges herein. Generally, appellant contends that the absence of direct evidence of his involvement in certain offenses charged preclude a finding of guilt in those matters. For instance, appellant refers to a number of cases in which an associate under his employ was the person who actually prepared some of the false contingent fee agreements for which the court below held appellant responsible. Appellant's attempt to shield his guilt in this manner is unavailing. The fact that an attorney may not have dirtied his hands with the manual task of filling in forms does not necessarily relieve him of culpability any more than would the use of "runners" to avoid direct involvement in solicitation. If under the circumstances it is reasonable to infer that the action was taken at the party's direction or with his approval, the fact finder may draw such inferences to support a finding of guilt. Appellant's position is very close to the untenable proposition that a charge of professional misconduct may not rest exclusively on circumstantial evidence. This Court has upheld even the sanction of disbarrment on charges proven solely by circumstantial evidence. See, e.g., Lemisch's Case, 321 Pa. 110, 184 A. 72 (1936); Salus's Case, 321 Pa. 106, 184 A. 70 (1936). Thus, appellant cannot rely on this argument for overturning any of the findings of guilt below as a matter of law.

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

[ 458 Pa. Page 443]

    without any requirement of compensation. DR 1-102 provides: "(A) A lawyer shall not: . . . (2) Circumvent a Disciplinary Rule through actions of another." This section, read in light of the proscription against self-recommendation in DR 2-103, not only condemns the hiring of solicitors by attorneys but also forbids any arrangement between an attorney and solicitor for solicitation purposes or even the acquiescence of the attorney who has knowledge of a solicitor's activities in his behalf. We do not mean to suggest that the casual recommendation of an attorney by a friend or acquaintance is improper. Rather we seek to eliminate the active recruitment of clients and stirring up of litigation by or on behalf of attorneys.

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 solicitation [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 Fifth Amendment ...


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