Summary
In Bar Assn. v. Cassaro (1980), 61 Ohio St.2d 62 [15 O.O.3d 109], respondent was convicted of five criminal misdemeanor violations involving a workers' compensation fraudulent claim scheme.
Summary of this case from Bar Assn. of Greater Cleveland v. WilsmanOpinion
D.D. No. 79-16
Decided January 23, 1980.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
This cause came on for hearing on April 16, 1979, in Cleveland, before the duly appointed panel of the Board of Commissioners on Grievances and Discipline. Respondent, Charles T. Cassaro, was present and represented by counsel, Ralph D. Sperli.
The complaint of relator, Bar Association of Greater Cleveland, charged respondent with misconduct, as follows:
"On or about December of 1972, Respondent, as an Attorney at Law, allied himself with one Robert Berman and began to accept Workers' Compensation cases on behalf of claimants which were referred to him by the said Robert Berman. During the years of 1973, 1974, and 1975, Respondent processed a number of claims with the Industrial Commission of Ohio which claims were referred to him by the said Robert Berman and which were subsequently found to have been fraudulent.
"On October 31, 1977, before the Honorable Lloyd O. Brown, Judge in the Court of Common Pleas, Cuyahoga County, Ohio, Case CR-35661, Respondent waived his rights to a trial by jury and entered a plea of guilty to five (5) counts of Attempted Tampering with Records in violation of Sections 2923.02, and 2913.42, Ohio Revised Code. The said charges arose out of and involved the records maintained in the claims being handled by Respondent before the Industrial Commission of Ohio which were subsequently determined to have been fraudulent. A copy of the transcript of the hearing before the Honorable Lloyd O. Brown on October 31, 1977 is attached***.
"Respondent's conduct and his plea of guilty to five (5) counts of misdemeanors of the first degree are in violation of the attorney's oath of office and the following Disciplinary Rules of `The Code of Professional Responsibility' as adopted under Rule IV(1) of the Supreme Court Rules for the Government of the Bar of Ohio:
"DR 1-102 Misconduct.
"(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 Representing a Client Within the Bounds of the Law.
"***
"(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."
Attached to the complaint was a transcript of the proceedings in the Court of Common Pleas of Cuyahoga County in the case of State of Ohio v. Charles T. Cassaro, Case No. CR-35661, which contained the statements made by respondent and his counsel during the course of his entering pleas of guilty to five misdemeanors.
An answer was filed on behalf of respondent denying the first paragraph of the complaint, but admitting that respondent had entered guilty pleas to the five counts referred to in the complaint. The answer further denied that respondent had violated any of the aforementioned Disciplinary Rules. The answer further set forth, as a first defense, that the misdemeanors did not involve moral turpitude, a second defense that the respondent was not aware of the fact that fradulent claims were being presented by his clients, and a third defense that the Supreme Court Rules for the Government of the Bar of Ohio are unconstitutional.
Thereafter, counsel for respondent filed a motion to dismiss, the first branch of which contended that the offenses to which respondent plead guilty did not conclusively establish the commission of a crime involving moral turpitude. The second branch of the motion contended that the Supreme Court Rules for the Government of the Bar of Ohio did not contain sufficient guidelines for the panel to properly take any disciplinary action. This motion to dismiss was overruled.
At the hearing, it was stipulated between counsel for respondent and relator that: (1) Respondent was at all times relevant a member of the Ohio Bar, having been licensed to practice in 1970; (2) on October 31, 1977, respondent, while represented by counsel in Case No. CR-35661 cited above, waived his right to trial by jury, and plead guilty to five counts of attempted tampering with records in violation of R.C. 2923.02 and 2913.42; (3) and the five counts involved the records of five claimants before the Industrial Commission, wherein the claimants were represented by respondent, having been referred to respondent by Robert Berman. Attached to the stipulation were copies of the five informations to which respondent plead guilty.
Relator offered the stipulation in evidence, further referred to a portion of the transcript of the hearing at which respondent entered the pleas of guilty, and rested its case.
Counsel for respondent offered the testimony of the respondent, and no other witnesses were called on his behalf. Respondent stated that in the latter part of 1972 he met Berman, and, thereafter, Berman started to refer workers' compensation claims to him, and also referred some personal injury claims to him. Respondent estimated the total number of claims referred to him by Berman was about 30.
It was admitted in the course of the proceedings that Berman operated a system of presenting fraudulent claims to the Industrial Commission which involved other attorneys in the Cleveland area. The scheme involved the registration, with the Industrial Commission, of corporations which were created for the sole purpose of having fraudulent workers' compensation claims presented against them by Berman, his wife, and other acquaintances. In some instances, the claims were presented under fictitious names.
Respondent insisted that he had no knowledge of any of these activities by Berman at any time until a series of articles appeared in the Cleveland newspapers in May of 1976. He also testified that he was not receiving cooperation from the claimants referred to him by Berman, and that, consequently, in the early part of 1975, he addressed letters to the claimants referred to him by Berman advising them that he was withdrawing and would not continue to represent them in their Industrial Commission claims.
Respondent testified that he was unable to document any of these matters because when the articles began to appear in the newspapers about the Berman fraud scheme, he "panicked" and destroyed the files of these claimants. He said that he did confer with an attorney (not Ralph D. Sperli) before destroying the files.
Respondent testified further that, under the procedure followed in the Industrial Commission office in Cleveland, an attorney representing a claimant would sign a form card which would be stapled to the file, and if the attorney would later withdraw from the case and another attorney subsequently represent the claimant, the latter would sign one of the cards which would then be stapled to the file.
The informations charged respondent with removing these representation cards from the five files covered in the informations, in March, April and May of 1975, which was approximately the same period during which respondent stated that he sent letters to the claimants advising them that he was withdrawing as their attorney.
Respondent also testified that he was indicted. While it was not clear from the testimony offered, the charge apparently was in the nature of grand theft. That case proceeded to trial and resulted in a "hung jury."
Respondent then testified that, following the trial, when the time was approaching for another trial on that charge, he, and his attorney, Sperli, entered into a "plea bargaining" arrangement under which he entered a guilty plea to the five misdemeanors charged in the informations. Respondent insisted that he was not guilty of the offenses charged in the informations, but that to avoid another trial, and the pressures on his family, he decided to enter the pleas.
The following testimony of respondent is pertinent:
"Q. Well, you [respondent] mentioned that you had sent letters, and I guess that was how long before the article or articles appeared in the paper concerning Berman?
"A. Approximately one year.
"Q. One year before, your testimony is you sent letters to these five claimants withdrawing from them, right?
"A. That's correct.
"Q. And then when the article hit the newspaper, you tore up these files?
"A. My own files, yes.
"Q. Knowing that you would receive complete exoneration, wouldn't you, if you brought a letter to the Commission saying I sent a letter to this client and here is a copy of it, a year ago?
"A. I wasn't thinking clearly at that time. I was confused and I was mixed up and very upset, and that was the reason my initial reaction was panic and fear and, eventually, I did go to an attorney and seek his advice.
"Q. Mr. Cassaro, before you tore up the files including the letter of withdrawal to the claimants, you had seen an attorney before you tore them up, didn't you?
"A. As I have indicated, when I went to see the original attorney, who is not Mr. Sperli, I went and we spoke in generalities and he took a wait-and-see attitude until — just to see what was going to develop from there with respect to this particular scandal and investigation.
"A number of attorneys had already gone to that office and, in fact, there were a number of attorneys that were seeking legal advice because they had been touched in one way or another by Mr. Berman.
"Q. My question was this: you had seen a lawyer for some advice concerning this investigation before you tore up the files; is that right or not?
"A. Yes."
On cross-examination, it was further elicited from respondent that he had represented a woman purportedly named Paula Douglas as well as Mr. and Mrs. Berman and a Mr. and Mrs. Strazinski in the matter of personal injury claims, arising out of an automobile accident. Actually, the claims were fraudulent, and Paula Douglas and Susan Berman were one and the same person. Relator offered in evidence copies of the settlement drafts made payable to the respective claimants and to respondent which were issued in May of 1974. Respondent denied any knowledge of the claims being fraudulent until after he became aware of the Berman "scandal."
At the conclusion of respondent's testimony, relator, by way of rebuttal, offered the testimony of Michael Corrigan, an assistant county prosecutor for Cuyahoga County. He testified that he had actively participated in the investigation of the Berman matter, and represented the prosecutor's office in the case against respondent, including its conclusion by way of pleas of guilty to the charges in the five informations.
Corrigan testified that, as part of its investigation, the prosecutor's office found that a number of the files involving fraudulent claims did not contain attorney representation cards, and that it appeared that the cards had been removed after being stapled to the files.
Corrigan testified that in addition to containing the card with the name of the attorney representing the claimant, the Industrial Commission files also contain a form designated as C-27, on which is recorded the name of the attorney to whom a file is checked out from the file room for review. By examining that form, the prosecutor's office was able to determine that respondent had represented a number of the claimants presenting fraudulent claims, even though the representation cards had been removed from the files. It was on the basis of this investigation that the informations were prepared.
On cross-examination, Corrigan testified that the prosecutor's office began an investigation of the Berman affair in May of 1976, and that the matter became publicly known after one of the attorneys involved in setting up the corporations for Berman committed suicide. He also testified that the information in the files in question revealed that other attorneys had signed attorney representation cards which were filed at various times between May and October of 1975.
Respondent thereafter testified that he, at no time, was aware of any fraud involved in any of these claims which he handled, until the newspaper articles appeared in mid-1976, and he further denied that he had removed any of the attorney authorization cards from any of the files.
The board found that respondent's pleas of guilty to the five informations show a violation of DR 1-102 (A)(3), (4), (5), and (6) of the Code of Professional Responsibility. The board was also of the opinion that respondent violated the provisions of DR 7-102 (B)(1) and (2).
The board recommended to this court that respondent be indefinitely suspended from the practice of law.
Mr. Byron D. Fair, Mr. Stanley M. Fisher and Mr. Donald C. Iler, for relator.
Mr. Ralph D. Sperli, 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.***" Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, 81.
Having reviewed the findings of fact and recommendation of the board, as well as the documentation and argument presented to this court, it is found that respondent did violate the above cited provisions of the Code of Professional Responsibility.
It is the judgment of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, VICTOR, SWEENEY, LOCHER and HOLMES, JJ., concur.
VICTOR, J., of the Ninth Appellate District, sitting for P. BROWN, J.