Attorney Grievance Com'n of Maryland v. Ezrin

• Decision Date: 01 September 1986
• Docket Number: No. 38,38
• Citation: 312 Md. 603,541 A.2d 966
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Herbert Stanley EZRIN. Misc. Docket (Subtitle BV),
• Court: Maryland Court of Appeals

Page 603

312 Md. 603

541 A.2d 966

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Herbert Stanley EZRIN.

Misc. Docket (Subtitle BV) No. 38, Sept. Term, 1986.

Court of Appeals of Maryland.

June 1, 1988.

Melvin Hirshman, Bar Counsel, Attorney Grievance Com'n of Maryland, for petitioner.

Durke G. Thompson, Bethesda, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

Herbert Ezrin, a member of the Maryland Bar since 1966, was charged in the Circuit Court for Montgomery County with two counts of conversion of partnership funds, and one count of misappropriation of entrusted funds, in violation, respectively, of Maryland Code (1987 Repl.Vol.), Article 27, § 173 and Code (1987 Repl.Vol.), Article 10, § 44(a). He pleaded guilty to the charges and was sentenced to six years' imprisonment with all but ninety days suspended.

The record discloses that over a three-year period Ezrin misappropriated and converted $200,000 for his own personal use from funds belonging to the law partnership with which he practiced law. Full restitution of the amount of the theft was made by Ezrin following discovery of the misappropriation.

Following his criminal convictions, the Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary Action against Ezrin, alleging violations of the disciplinary rules of the Code of Professional Responsibility. We referred the matter pursuant to Maryland Rule BV9 b to Judge Calvin R. Sanders of the Circuit Court for Montgomery County to make findings of fact and conclusions of law.

After conducting an evidentiary hearing, Judge Sanders found that neither drugs, alcohol, nor gambling was implicated in Ezrin's misconduct, and that no "financial pressures ... contributed to his actions." Judge Sanders further found that subsequent to his misconduct, Ezrin came under the care and treatment of two psychiatrists (Drs. Crowley and Kurtz) who agreed that "he was not at the time of the misappropriations, nor is he now, psychotic, but that his actions may be attributable to a mental disorder characterized as a mixed personality disorder." Judge Sanders also found from the evidence, particularly from Dr. McDaniel, a psychiatrist who examined Ezrin at Bar Counsel's request, that Ezrin's misappropriation was only of partnership funds and was made "with full knowledge that he was committing illegal acts"; that he was not acting under "any compulsion to steal"; that he possessed the "full ability to cease such acts at any time"; that his actions "were taken and rationalized by his belief that his partners were taking undue advantage of him, and that the funds so misappropriated were due him because of his unrequited contributions to partnership activities." Additionally, Judge Sanders found that Ezrin requires continuing psychiatric treatment and that the prospects for resolving his personality disorder are encouraging. By reason of Ezrin's misconduct, Judge Sanders concluded that there had been violations of DR 1-102(A)(3), (4), (5) and (6) of the Code of Professional Responsibility, i.e., that Ezrin engaged in illegal conduct involving moral turpitude, dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice, which adversely reflected on Ezrin's fitness to practice law.

Ezrin took exception to Judge Sanders' factual determination that he had the ability to cease his illegal actions at any time. In his exceptions, and during oral argument before us, Ezrin pointed out that Dr. Crowley testified that Ezrin was incapable, on his own, of stopping his acts of misappropriation; and that Dr. Kurtz testified that Ezrin "rationalized his actions and was acting out his depression neurosis and was helpless at this time because he was without a full complement of psychological abilities."

Ezrin acknowledges that Dr. McDaniel testified that while Ezrin was the subject of very powerful and disturbing emotions, which obscured his judgment, he nevertheless could have ceased his criminal acts. Dr. McDaniel's testimony, Ezrin contends, was inconsistent with her own diagnosis that he was suffering from a mental disorder at the time of the misappropriations which was "brought about by deepseated personality deficits exacerbated by a pressure and stress ridden environment." Ezrin claims that Judge Sanders' factual finding was contrary to the weight of the evidence and was, therefore, clearly erroneous.

By way of a disciplinary sanction for his admitted misconduct, Ezrin asks that we take into account that his criminal acts were "not fully volitional, but were the product of a long history of negative contact from others, emotional illness, and brought about [by] the interaction of the Respondent with family and associates." Contending that his misappropriation of the partnership funds was caused by his disabling emotional state, and did not involve client funds, Ezrin suggests that "the administration of justice did not suffer except in the broadest sense"; that he has shown by the psychiatrists' testimony that his mental condition was "not of his own making"; that he acted out of anger rather than from greed or avarice in a self-destructive effort to strike back at his uncaring law partners. Ezrin expresses deep remorse for his misconduct and urges that disbarment is not appropriate in the circumstances. He points to a number of factors which he says mitigates his misconduct, particularly that his mental state was a substantial causative factor in his misbehavior. He suggests that he is presently fit for the practice of law, is not a threat to clients or the public in general, and is a positive force in the community. He asks to be restored to the active practice of law forthwith under such conditions as may be imposed by this Court, including counseling by the Director of the Lawyer Counseling Service of the Maryland State Bar Association.

Bar Counsel recommends disbarment. He maintains that Judge Sanders was correct in concluding from the evidence that Ezrin's misconduct was not caused by his mental condition. He further argues that no compelling extenuating...