Attorney Grievance Com'n of Maryland v. Mandel

Decision Date28 October 1982
Citation451 A.2d 910,294 Md. 560
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Marvin MANDEL. Misc. (BV) 16.
CourtMaryland Court of Appeals

Glenn M. Grossman, Asst. Bar Counsel, Annapolis (Melvin Hirshman, Annapolis, Bar Counsel, on the petition), for petitioner.

M. Albert Figinski, Baltimore (Arnold M. Weiner, Baltimore, on exceptions), for respondent.

Argued before SMITH, COLE and, RODOWSKY, JJ., and JAMES C. MORTON, Jr., EDWARD O. WEANT, Jr., and JOHN J. GARRITY, Associate Judges, Court of Special Appeals, and JOHN E. RAINE, Jr., Chief Judge of Third Judicial Circuit, Specially Assigned Judges.

SMITH, Judge.

We shall impose the ultimate sanction of disbarment in this attorney disciplinary matter based upon a mail fraud conviction.

I

Marvin Mandel was admitted to the bar of this Court on October 8, 1942. On November 2, 1977, Bar Counsel, acting on behalf of the Attorney Grievance Commission of Maryland, filed a petition pursuant to Maryland Rule BV16 in which he requested that we suspend Mandel from the practice of law until the further order of this Court. 1 This petition was based upon Mandel's conviction by a jury in the United States District Court for the District of Maryland of violation of 18 U.S.C. § 1341 (mail fraud--fifteen counts) and 18 U.S.C. § 1961 et seq. (racketeering--one count). In response to that petition, Mandel prayed that we "pass an order deferring a determination of the merits of the Petition ..., including the question of moral turpitude" and that we also pass an order suspending him "from the further practice of law until [our] further order or until such time as the Respondent's conviction ... is reversed on appeal, whichever is the earlier to occur ...." Accordingly, we suspended Mandel on December 1, 1977, "effective immediately ...." The suspension was "without prejudice to [his right] to raise the issue of moral turpitude in further proceedings ...."

Mandel's conviction was affirmed on appeal. See United States v. Mandel, 591 F.2d 1347 ( Mandel I ), 602 F.2d 653 ( Mandel II ), 609 F.2d 1076 (4th Cir.1979), cert. denied 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). We shall have more to say about that affirmance since it is a significant part of Mandel's contentions here. He continues to stand suspended from the practice of law in this State. He was disbarred in the United States District Court for the District of Maryland on July 9, 1980.

Mandel was sent to prison. Under Rule BV16 c, in the absence of a request from the attorney, further disciplinary action is postponed until a reasonable time after completion of incarceration. See Attorney Griev. Comm'n v. Andresen, 279 Md. 250, 253-54, 367 A.2d 1251 (1977).

II

Promptly after Mandel was released from prison Bar Counsel, acting on behalf of the Attorney Grievance Commission, filed a petition seeking disciplinary action against Mandel upon the basis of this conviction. He alleged that Mandel had violated Disciplinary Rules 1-102(A)(1), (3), (4), (5), and (6). 2

Pursuant to Rule BV9, we designated the Honorable J. Harold Grady, Chief Judge of the Eighth Judicial Circuit of Maryland, to hear the charges. He filed a report with us which states in pertinent part:

"In his Answer to Charges, the Respondent admits all of the facts above stated, but denies that he is subject to disbarment contending that the crimes of which he was convicted do not constitute misconduct violative of Disciplinary Rule 1-102 .... In particular the Respondent contends that the crimes of which he was convicted do not involve moral turpitude and that to so find unconstitutionally deprives the Respondent of due process under both the United States Constitution and the Maryland Constitution."

After a discussion of cases in this Court such as Attorney Griev. Comm'n v. Pine, 291 Md. 319, 435 A.2d 419 (1981); Attorney Griev. Comm'n v. Klauber, 289 Md. 446, 423 A.2d 578 (1981) (Klauber III ); and Maryland St. Bar Ass'n v. Rosenberg, 273 Md. 351, 329 A.2d 106 (1974), Judge Grady quoted from Rule BV 10 e 1 which states in pertinent part:

"In a hearing of charges pursuant to this Rule, a final judgment by a judicial tribunal in another proceeding convicting an attorney of a crime shall be conclusive proof of the guilt of the attorney of that crime."

He then said:

"The provisions of this Rule in conjunction with the decisions in Klauber III and Pine, supra, compel the conclusion that this court may not examine the factual underpinnings of the Respondent's federal conviction and must find that he has been convicted of a crime involving moral turpitude."

Judge Grady rejected Mandel's contention that the posture of his case in the United States Court of Appeals rendered his conviction devoid of precedential value or any substance in these proceedings and thus that due process precluded the use of this conviction as conclusive proof of guilt of a crime involving moral turpitude. In so doing, the trial judge quoted from Rosenberg, 273 Md. 351, 329 A.2d 106. He then made the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"Respondent was convicted, after a jury trial in the United States District Court for the District of Maryland, of violations of the United States Code, Title 18, Sections 1341 and 2 (mail fraud, aiding and abetting), Sections 1961, 1962(b) and (c), 1963 and 2 (prohibited activities; aiding and abetting) and thereafter was sentenced to concurrent terms of imprisonment for three years.

"CONCLUSIONS OF LAW

"1. The federal crime of mail fraud is a crime involving moral turpitude.

"2. By virtue of his conviction of federal mail fraud, Respondent has violated the following Disciplinary Rules:

DR 102(A) (1)

DR 102(A) (3)

DR 102(A) (4)

DR 102(A) (5)

DR 102(A) (6)"

III

Mandel excepted to Judge Grady's findings of fact and conclusions of law. The exceptions may be summarized: (1) since "[t]he only federal appellate majority opinion" relative to his conviction called for a reversal, the subsequent affirmance of his conviction by a tie vote "should not be sufficient to allow the conviction, ipso facto, to be used to disbar since an en banc federal appellate tie is without precedential value" and thus in this instance should not be considered as a final judgment under Rule BV10 e 1; (2) the mail fraud statute was improperly applied "to a scheme to defraud a sovereign State and its citizens of the faithful services of their Governor"; (3) a code of ethics not applicable by its terms to the Governor of Maryland was impermissibly permitted to be used by the jury as a standard for judging him; (4) "[t]he federal court admitted a vast quantity of unwashed hearsay which the Government offered as 'the central part of its case.' 591 F.2d at 1367"; and (5) he does not stand convicted of a crime involving moral turpitude because his case is distinguishable from Klauber III, 289 Md. 446, 423 A.2d 578. He opened his memorandum in support of his exceptions by stating, "There is no doubt that Respondent was convicted of mail fraud and incarcerated therefor. The sole question, now, is whether Respondent should be disbarred therefor."

The term "misconduct" in its application to attorney disciplinary matters is defined in Rule BV1 j as "an act or omission by an attorney, individually or in concert with any other person or persons which violates the Disciplinary Rules of the Code of Professional Responsibility, as adopted by Rule 1230, whether or not the act or omission occurred in the course of an attorney-client relationship."

In Mandel I, 591 F.2d 1347, a divided court reversed the convictions of Mandel and his co-defendants on the basis of a jury instruction and the admissibility of certain evidence. The court said as to the jury instruction:

"We think it was necessary for the jury to be charged that Governor Mandel could not be convicted under § 1341 for engaging in a scheme to defraud that involved the fraudulent misrepresentation of facts to, or such concealment of material information from, the 1972 Maryland General Assembly, without first finding that he knew that some or all of the other Appellants were among the true owners of Marlboro Race Track during the 1972 session of the Maryland General Assembly." 591 F.2d 1365.

It held that the trial judge erred by allowing the Government to introduce into evidence certain parts of the Maryland Code of Ethics "to prove circumstantially an intent to defraud on the part of Governor Mandel." 591 F.2d at 1366. It said it did "not think admittedly inapplicable standards of conduct had a proper place in the trial, especially when perfectly valid standards existed." 591 F.2d at 1367. It also held the trial judge erred in admitting certain evidence "under Federal Rule of Evidence 803(24), the catch-all exception to the hearsay rule." Id. However, the court "reject[ed] Appellants' contention that the use of the mail fraud statute in th[at] case constitute[d] an impermissible federal intrusion into the political affairs of the State of Maryland." 591 F.2d at 1359. It determined that "Appellants' contention that their convictions were based on an unwarranted overextension of the mail fraud statute [was] likewise without merit." 591 F.2d at 1359. The court disposed of contentions that the mail fraud statute should not have been applied to the case before it by stating:

"[I]t is apparent that the mail fraud case could have been submitted on either or both of two theories on the indictment and record now before us. First, that Governor Mandel had either been bribed as a part of a scheme to defraud or that attempts had been made to bribe Governor Mandel as a part of such scheme. Second, that false information was presented to, or true information concealed from, the Maryland General Assembly or Maryland Racing Commission, or both, in order to induce those bodies to take favorable action toward those interested in Marlboro, and later Bowie. It is equally as...

To continue reading

Request your trial
16 cases
  • Mandel v. O'Hara
    • United States
    • Maryland Court of Appeals
    • September 1, 1990
    ... ... No. 33, Sept. Term, 1990 ... Court of Appeals of Maryland ... July 27, 1990 ... Page 104 ...         Marvin Mandel, ... Margiotti, 371 Pa. 188, 88 A.2d 892 (State Attorney General)." ...         Id. at 169-70, 129 A.2d at 151. The ... See Attorney Grievance Comm'n v. Mandel, 294 Md. 560, 451 A.2d 910 (1982). After his conviction ... ...
  • ATTORNEY GRIEVANCE COM'N OF MARYLAND v. Bereano
    • United States
    • Maryland Court of Appeals
    • January 13, 2000
    ...did not prevent his conviction of mail fraud." Id. at 324, 435 A.2d at 422. This Court disbarred Pine. Attorney Grievance Commission v. Mandel, 294 Md. 560, 451 A.2d 910 (1982), involved the conviction of a Governor of Maryland under the mail fraud statute. We stated that "fraud was the ver......
  • Frick, In re, 65934
    • United States
    • Missouri Supreme Court
    • August 7, 1985
    ...false tax return); Louisiana State Bar Ass'n v. Whiting, 425 So.2d 725 (La.1983) (false pretenses); Attorney Grievance Comm'n of Maryland v. Mandel, 294 Md. 560, 451 A.2d 910 (1982) (mail fraud); Attorney Grievance Comm'n of Maryland v. Molovinsky, 300 Md. 291, 477 A.2d 1181 (1984) (counter......
  • Attorney Grievance Comm. v. White
    • United States
    • Maryland Court of Appeals
    • June 10, 1999
    ...involving dishonesty, fraud, or deceit, carry the risk of the ultimate sanction by this Court. In Attorney Grievance Commission v. Mandel, 294 Md. 560, 587-88, 451 A.2d 910, 923 (1982) (quoting State Bar Ass'n v. Agnew, 271 Md. 543, 553, 318 A.2d 811, 817 (1974)), we "... [T]his Court has c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT