Opinion
D.D. No. 79-17
Decided January 23, 1980.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Relator, Bar Association of Greater Cleveland, filed a complaint with the Board of Commissioners on Grievances and Discipline, wherein relator charged respondent, Carl J. Zaffiro, with having violated DR 1-102(A) and Canon 1 of the Code of Professional Responsibility.
The matter came on for hearing before the board of commissioners in Cleveland on April 6, 1979. Respondent appeared for direct examination and established that he was 39 years of age, married and the father of five children; that he has been engaged in the practice of law in the state of Ohio since 1966, having been graduated from Cathedral Latin High School, John Carroll University and Cleveland Marshall Law School; and that he had worked for the Bureau of Workers' Compensation in the capacity of an investigator. After leaving the bureau, respondent entered private practice and shared secretarial help and office space. Respondent engaged primarily in handling workers' compensation and personal injury matters.
Counsel for respondent presented an agreed stipulation, which was made a part of the record, as follows:
"1. Early in the afternoon on May 27, 1976, Respondent Carl J. Zaffiro, telephoned Ms. Ruby Shepherd, Superintendent of the file room in the Cleveland Claim Section of the Bureau of Workmen's Compensation, and asked her to pull several files for his review later that afternoon.
"2. Prior to Respondent's arrival, Ms. Shepherd pulled the requested files and gave them to another file room employee, Ms. Elaine Gilbert.
"3. Respondent arrived at about 3:45 p.m., at which time Ms. Gilbert gave him the files to examine. Respondent signed R-3 cards for each of said files. (An R-3 card is a written request to inspect a claim file, which written request then becomes a permanent part of the file.)
"4. When Respondent returned the files to Ms. Gilbert, Ms. Gilbert noticed that the R-3 request-to-inspect card and the R-2 authorization card was missing from each one of the subject files. (An R-2 authorization card is signed by the claimant and authorizes a particular attorney to represent him in connection with the claim.) When she demanded that Respondent return the cards to the files, Respondent stated that he would not do so because he no longer represented the claimants involved in the subject files.
"5. Ms. Gilbert then reported these developments to Ms. Shepherd, who also asked for the R-3 and R-2 cards. After further discussion, Respondent ultimately acceded and gave the cards back.
"6. Ms. Shepherd then told Respondent that, if he wanted to dismiss these claims, he would have to write a letter of dismissal.
"7. Ms. Gilbert asked Respondent, `What's going on?' Respondent answered: `I just heard these cases weren't kosher and I want out.' Ms. Gilbert then asked, `How did you get into this?' to which Respondent replied: `I don't even know how I got into it.'
"8. On October 4, 1977, Respondent appeared in person, with counsel, before the Common Pleas Court of Cuyahoga County, Ohio, waived presentment by way of indictment, and pleaded guilty to six counts contained in an information charging Respondent with attempting to tamper with public records, in violation of Ohio Revised Code Section 2923.02. In substance, Respondent pleaded guilty to the charge that, with the purpose to defraud or knowing that he was facilitating a fraud, he had unlawfully and purposefully attempted to remove records from six separate claim files of the Bureau of Workmen's Compensation and/or the Ohio Industrial Commission."
With respect to the agreed stipulation, respondent testified that prior to calling Ms. Ruby Shepherd and asking her to pull the several files for his review, respondent had "received a phone call in the afternoon***[a]bout 2:30, 2:45***from a Dr. Zarzar***a chiropractor in South Euclid"; that he had known Dr. Zarzar for "[a]bout eight or ten years"; and that Dr. Zarzar had done some medical work for some of respondent's clients, and had even referred a few of his patients to respondent.
Respondent stated that in this telephone conversation, Dr. Zarzar "was excited, almost unintelligible. He said, `They just found out that some of the cases I was referred weren't kosher.'"
Respondent testified further that he had asked the doctor, "What are you talking about?" and that Dr. Zarzar had said, "`Yes, those cases***some of those people weren't even working for the people they said they were***[s]ome of them never got into any accident.'"
Respondent also testified that he said in the phone conversation, "What are you talking about? You treated them all," and that Dr. Zarzar replied, "`Sure, but believe me. It is not your problem. You are not concerned. They weren't kosher.***Get out of them.'"
Respondent was involved in approximately six cases out of several hundred which were then under investigation. Respondent was charged along with Dr. Zarzar and Bucky Berman with participating in a fraud to which Dr. Zarzar and Bucky Berman pleaded guilty.
The board found that the allegations contained in relator's complaint were true and that respondent had violated DR 1-102(A)(5) and Canon 1 of the Code of Professional Responsibility. The board recommended to this court that respondent be indefinitely suspended.
Mr. Marvin L. Karp, Mr. Joseph C. Domiano and Mr. Joseph A. Dubyak, for relator.
Gold, Rotatori, Messerman Schwartz Co., L.P.A., and Mr. Gerald S. Gold, for respondent.
"One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach. He should refrain from any illegal conduct. Anything short of this lessens public confidence in the legal profession — because obedience to the law exemplifies respect for the law." Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, 81.
DR 1-102, in part, reads as follows:
"(A) A lawyer shall not:
"***
"(5) Engage in conduct that is prejudicial to the administration of justice."
Here the facts show that respondent had known Dr. Zarzar for about eight or ten years and that Dr. Zarzar had referred clients to the respondent, and that among these clients were those who had submitted certain false claims for medical disability payments under the Workers' Compensation Act.
The facts further show that the respondent removed the legal counsel authorization cards from the files of those individuals whose claims were fabricated. This action is claimed to have been impetuous by the respondent and not an action which would warrant the imposition of the sanction of indefinite suspension as was recommended by the board. However, respondent was no neophyte to the workings of the Bureau of Workers' Compensation, having been employed there previously as an investigator for a number of years. Also, respondent was, at the time of this hearing, specializing in workers' compensation cases.
The record further shows that respondent had been referred workers' compensation cases by one Bucky Berman who was the central figure in a large scandal involving false workers' compensation claims in the Cuyahoga County area.
In view of the totality of the evidence presented here, we find that the board was well within its province in determining that respondent was guilty of violating DR 1-102(A)(5) and Canon 1 of the Code of Professional Responsibility.
We, therefore, concur in the recommendation of the board, and hereby indefinitely suspend respondent, Carl J. Zaffiro, from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, SHANNON, SWEENEY and HOLMES, JJ., concur.
SHANNON, J., of the First Appellate District, sitting for P. BROWN, J.
In my opinion, the punishment meted out to the respondent should be a public reprimand. This case differs in considerable measure from Bar Assn. v. Cassaro (1980), 61 Ohio St.2d 62, which involves a similar setting and heard one day prior to the cause at bar.
I have joined with my colleagues in calling for a suspension in Cassaro, but yet feel that the respondent, at bar, does not merit suspension.
In the instant cause, upon learning that his clients were not bona fide claimants, the respondent immediately tried to withdraw his name from the workers' compensation files. Only the manner in which he tried to remove his name was improper. The respondent's sole involvement in the fraud perpetrated by Mr. Berman was that he unknowingly filed an improper claim.
In Cassaro, the respondent actually destroyed his files and further removed the "name tags" which were attached to the workers' compensation files. Furthermore, the respondent, in Cassaro, was also involved in fraudulent personal injury actions with Mr. and Mrs. Berman, the same individuals who initiated the workers' compensation fraud.
Additionally, the two cases also differ as to the findings of a violation. In the instant cause, the respondent was found to be in violation of DR 1-102(A)(5) only. Whereas, in Cassaro, the respondent was found to be in violation of DR 1-102(A)(3), (4), (5) and (6) and 7-102(B)(1) and (2).
Note the nature and extent of the sections violated by Cassaro as compared to the respondent in the instant cause.
DR 1-102(A)(3), (4), (5) and (6) reads:
"(A) A lawyer shall not:
"***
"(3) Engage in illegal conduct involving moral turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
DR 7-102(B)(1) and (2) reads as follows:
"(B) A lawyer who receives information clearly establishing that:
"(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.
"(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal."
I understand that all disciplinary actions must be viewed on a case by case basis, but there are other instances in which the respondents, in my opinion, committed graver acts and yet received only a public reprimand. See Bar Assn. of Greater Cleveland v. Sandler (1977), 51 Ohio St.2d 132.
The present case does not demonstrate a series of continuing consciousness of improper acts and deeds; rather it was one isolated momentary lapse which should not result in an indefinite suspension. It is submitted that such acts as presented at bar merit at most only a public reprimand.