decided: December 17, 1981.
IN RE HARRY J. OXMAN AND RALPH S. LEVITAN, APPELLANTS
Nos. 270 & 369, January Term, 1979 and No. 80-3-704, Appeal from the Orders of the Special Disciplinary Court Dated June 8, 1979, September 4, 1979 and August 6, 1980
John W. Herron, Philadelphia, and Allen B. Zerfoss, Harrisburg, for appellee.
Thomas B. Rutter, Philadelphia, for appellants.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
[ 496 Pa. Page 537]
Harry J. Oxman and Ralph S. Levitan appeal from orders of the Special Disciplinary Court of the Court of Common Pleas of Philadelphia suspending them from the practice of law for one and one-half years and one year respectively for 29 violations of the Canons of Ethics and the Code of Professional Responsibility.*fn1 Because we conclude that the findings of fact are adequately supported by the record, and because those facts forcefully establish that appellants are unworthy of the public trust and confidence vested in them
[ 496 Pa. Page 538]
as members of the legal profession, we affirm the orders imposing discipline.*fn2
The record discloses a pattern of serious misconduct by appellants, culminating in a reprehensible effort to impede the disciplinary investigation by requesting witnesses to give false testimony. William R. Jordan ("Jordan"), an "investigator" employed by appellants' law firm ("firm"), frequently appeared at accidents, hospitals, and the homes of accident victims for the purpose of persuading potential claimants to retain the firm. Contingent fee agreements were then filed by appellants in the Court of Common Pleas of Philadelphia which falsified referral sources in an effort to conceal their unethical solicitations. Appellants thereafter compounded their earlier transgressions by counseling and requesting clients and former clients to testify falsely before the investigating judge in the Special Judicial Investigation. The sufficiency of the evidence establishing these facts is not challenged.
On September 6, 1972, then Special Counsel William Stewart filed a Petition for Imposition of Discipline. A trial on the merits was held, and, on July 16, 1973, the Court suspended Oxman from the practice of law for five years and Levitan for three years.*fn3 Because of the conduct of Special Counsel during the trial, however, that decision was reversed by an Order of this Court on October 16, 1974, and the case was remanded for a new hearing.*fn4
[ 496 Pa. Page 539]
Upon remand, the Court did not conduct a new hearing, but reconsidered the prior record, and on December 27, 1974, issued a supplemental Order and Opinion reimposing the same discipline. Because the reconvened Court did not afford appellants a new hearing on the merits, however, this Court reversed on October 3, 1975, and remanded again for a new trial.*fn5
No further action was taken until March 14, 1978, when the Honorable Edward J. Bradley, President Judge of the Court of Common Pleas of Philadelphia, requested that counsel to the Disciplinary Board of the Supreme Court of Pennsylvania pursue the matter. This was agreed to on May 3, 1978, and on July 13, 1978, Judge Bradley appointed Allen B. Zerfoss, the Disciplinary Board's Chief Counsel, and his assistant John W. Herron, as Special Counsel to prosecute these disciplinary charges against appellants. On February 16, 1979, Judge Bradley also appointed a new Special Disciplinary Court ("Disciplinary Court").
On February 23, 1979, new Special Counsel refiled a Petition for Imposition of Discipline, and on April 16, 1979, appellants filed preliminary objections which raised (1) lack of jurisdiction of the Disciplinary Court, (2) delay in rescheduling trial, and (3) fairness and impartiality of the Disciplinary Court. The preliminary objections were dismissed on June 8, 1979, and an appeal from that dismissal was filed in this Court.
On June 27, 1979, appellants petitioned the Disciplinary Court to amend its June 8, 1979 order to certify that a controlling question of law existed. On the same day, appellants petitioned this Court for permission to appeal an interlocutory order. The Disciplinary Court denied appellants' petition on June 29, 1979. Appellants thereafter filed with this Court a petition seeking review of that denial. On August 16, 1979, this Court denied both of appellants' then pending petitions.
[ 496 Pa. Page 540]
On August 27, 1979, appellants filed a motion entitled "Plea in Bar or, In the Alternative, Motion to Dismiss the Petition for Imposition of Discipline," alleging that a retrial of the disciplinary charges would violate their Fifth Amendment double jeopardy rights. On September 4, 1979, the Disciplinary Court denied this motion and also denied appellants' requests for a stay of the proceedings and for the Disciplinary Court to recuse itself. On the same day, appellants filed a Notice of Appeal and requested this Court to stay the trial until their double jeopardy claim had been resolved. We orally denied appellants' request for a stay, and the trial proceeded. The Disciplinary Court issued its Adjudication and Imposition of Discipline on August 6, 1980. An appeal was taken to this Court, and on September 2, 1980, the Disciplinary Court stayed imposition of discipline. On December 2, 1980, all pending appeals were consolidated by this Court.
Appellants first contend that the Petition for Imposition of Discipline should have been dismissed because the delay between this Court's remand on October 3, 1975 and the retrial violated their constitutional rights to a speedy trial.*fn6 We disagree.
It is now well-established that not all constitutional protections afforded defendants in criminal cases apply to disciplinary proceedings. See Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975) (principles of res judicata and double jeopardy do not bar a disciplinary
[ 496 Pa. Page 541]
proceeding which follows disposition of criminal charges although based on substantially the same conduct); Berlant Appeal, 458 Pa. 439, 328 A.2d 471 (1974), cert. den., 421 U.S. 964, 95 S.Ct. 1953, 44 L.Ed.2d 451 (1976) (standard of proof required for sustaining disbarrment is "by a preponderance of the evidence" rather than "beyond a reasonable doubt").*fn7 In particular, the Sixth Amendment right to a speedy trial has been held to be inapplicable in disciplinary proceedings. As the Supreme Court of Oregon recently explained:
It ought to be made clear . . . that the primary purpose of professional disciplinary proceedings is to protect the public. The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the protection of the public. If the conduct of a member of the Bar disqualifies him from the practice of law, it would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar's failure to prosecute them with proper dispatch. (Emphasis supplied).
In re Weinstein, 254 Or. 392, 394, 459 P.2d 548, 549 (1969), cert. den., 398 U.S. 903, 90 S.Ct. 1689, 26 L.Ed.2d 61 (1970). See also Fitzgerald v. Cawley, 368 F.Supp. 677 (S.D.N.Y. 1973); Bar Association of Baltimore City v. Posner, 275 Md. 250, 339 A.2d 657 (1975), cert. den., 423 U.S. 1016, 96 S.Ct. 451, 46 L.Ed.2d 389 (1975). While due process may require dismissal of disciplinary charges if inordinate delay has caused substantial actual prejudice, Caldwell v. State Bar of California, 13 Cal.3d 488, 119 Cal. Rptr. 217, 531 P.2d 785 (1975), appellants, who at all times have retained the unlimited right to practice law, have proved no such thing.*fn8
[ 496 Pa. Page 542]
While we expressly and emphatically disapprove of the delay in these disciplinary proceedings, the record confirms that it was inadvertent and that it has not impeded appellants' right to a fair hearing.*fn9 We thus conclude that the Disciplinary Court correctly refused to dismiss the Petition for Imposition of Discipline.
Appellants next contend that their constitutional rights not to be placed twice in jeopardy for the same offense were violated by retrial after this Court concluded that the conduct of Special Counsel at the first trial required a reversal.*fn10 We again disagree.*fn11 Application of the double
[ 496 Pa. Page 543]
jeopardy clause generally extends only to criminal proceedings, see United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1981); Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1937), and since disciplinary proceedings are not criminal in nature, courts consistently have rejected double jeopardy defenses asserted therein. Fitzgerald v. Cawley, 368 F.Supp. 677 (S.D.N.Y. 1973); Office of Disciplinary Counsel v. Campbell, supra; In re Mackay, 416 P.2d 823 (Alaska 1966), cert. den., 382 U.S. 803, 86 S.Ct. 28, 15 L.Ed.2d 56 (1966).*fn12
Appellants further contend that the Disciplinary Court erred in refusing to recuse itself after receiving prejudicial information in a pre-trial proceeding.*fn13 Courts
[ 496 Pa. Page 544]
uniformly recognize, however, that a judge is presumed to be impartial, Commonwealth v. Conrad, 241 Pa. Super. 324, 361 A.2d 421 (1976), and that information learned by him in his judicial capacity does not necessarily result in personal bias requiring disqualification. United States v. Patrick, 542 F.2d 381 (7th Cir. 1976), cert. den., 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977); United States v. Gilboy, 162 F.Supp. 384, 393-94 (M.D.Pa. 1958).*fn14 Since the Disciplinary Court learned of appellants' prior assertion of the Fifth Amendment privilege from appellants themselves, and since it clearly had the capacity to dismiss such a fact from its consideration, that Court was not precluded from rendering a fair determination in this matter.*fn15
Our primary task in disciplinary matters is to protect the public from unfit attorneys and to maintain the integrity
[ 496 Pa. Page 545]
of the legal profession and the judicial process. See Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981); Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). As we observed in Office of Disciplinary Counsel v. Lewis, supra, quoting Maryland State Bar Association, Inc. v. Agnew, 271 Md. 543, 318 A.2d 811:
Few vocations offer as great a spectrum for good and honorable works as does the legal profession. The attorney . . . is a fiduciary, a confidant, an advisor, and an advocate . . . .
A court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Disciplinary procedures have been established for this purpose, not for punishment, but rather as a catharsis for the profession and a prophylactic for the public. (Emphasis in original).
493 Pa. at 528, 426 A.2d at 1142.
In soliciting clients, in falsifying contingent fee agreements, and, most seriously, in requesting witnesses to testify falsely in an effort to impede the Special Judicial Investigation, appellants have breached their ethical duties and have violated the public trust. We particularly condemn appellants' reprehensible efforts to obstruct the administration of justice. See Office of Disciplinary Counsel v. Campbell, supra; Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974). Because the record before us reveals a deplorable disregard for the integrity of the judicial process, we are compelled to conclude that appellants are unworthy of the public trust and confidence vested in them as members of the legal profession.
Accordingly, we affirm the discipline imposed by the Disciplinary Court and order that appellants be suspended from the practice of law immediately. It is further ordered that the periods of suspension shall be computed from the date of filing this Opinion.