Attorney Grievance Commission of Maryland v. Lebowitz

• Citation: 290 Md. 499,431 A.2d 88
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Donald S. LEBOWITZ. Misc. 19 Sept. Term
• Decision Date: 26 June 1981
• Court: Maryland Court of Appeals

Page 499

290 Md. 499

431 A.2d 88

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Donald S. LEBOWITZ.

Misc. 19 Sept. Term

Court of Appeals of Maryland.

June 26, 1981.

[431 A.2d 89] Walter D. Murphy, Jr., Asst. Bar Counsel, Annapolis, for petitioner.

Edward B. Harris, Jr., Baltimore, for respondent.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

PER CURIAM.

The Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary Action against Donald S. Lebowitz, alleging violations of the Disciplinary Rules of the Code of Professional Responsibility. The matter was referred, pursuant to Maryland Rule BV9 b, to Judge Basil A. Thomas of the Supreme Bench of Baltimore City to make findings of fact and conclusions of law. After conducting a hearing, Judge Thomas filed detailed findings and conclusions as follows:

"On October 6, 1980, the Attorney Grievance Commission of Maryland ('the Commission'), through Bar Counsel filed a Petition for Disciplinary Action against Respondent, Donald S. Lebowitz, in the Court of Appeals of Maryland, pursuant to Rule BV9 of the Maryland Rules of Procedure. The petition asserted that the Review Board of the Commission, pursuant to Rule BV 7 of the Maryland Rules of Procedure, directed Bar Counsel to file charges against the Respondent, which charges are alleged in two sections of the Petition filed: (1) Part A of the Petition concerning the criminal conviction of the Respondent in the U.S. District Court for the District of Maryland; and (2) Part B of the Petition concerning the payment of runners and the payment of insurance adjusters. Bar Counsel asked the Court of Appeals to take such disciplinary action as it thought appropriate.

"By an Order dated October 10, 1980, the Court of Appeals responded to Bar Counsel's allegations that Respondent did unethically and unprofessionally violate certain provisions of the Disciplinary Rules (DR) of the Code of Professional Responsibility and transmitted the charges to the Supreme Bench of Baltimore City (Eighth Judicial Circuit) to be heard and determined by the undersigned judge pursuant to Maryland Rule BV 9 et seq.

"In brief, the Bar Counsel's allegations are as follows. In Part A of the Petition, Bar Counsel charges that the Respondent violated DR 1-102(A)(1), DR 1-102(A)(3), DR 1-102(A)(4), DR 1-102(A)(5), and DR 1-102(A)(6) by willfully failing to report $4,780.00 of additional taxable "On December 17, 1980, the Respondent was served. The Respondent filed his Answer to Petition For Disciplinary Action on January 16, 1981. In his Answer, the Respondent prayed that the disciplinary action sought by the Petitioner be denied.

income on his 1976 individual tax return, which resulted in his criminal conviction under 26 U.S.C., § 7206(1), in the U.S. District Court for the District of Maryland. In Part B of the Petition, Bar Counsel alleges that the Respondent made payments to agents also known as 'runners' in return for their bringing in clients in personal injury cases to him on numerous occasions, and that such payments were made without the knowledge or consent of the client. Further allegations in Part B of the Petition involved the Respondent's improper payment of 15% of his fee which he earned in personal injury cases, to the insurance adjusters with whom he settled these cases. By the Respondent's allegedly engaging in the conduct described in Part B of the Petition, the Petitioner claims that the Respondent violated: DR 1-102(A)(1), (3), (4), (5), (6); DR 2-103(C), (D), (F); DR 3-102(A)(1), (2), (3); DR 7-102(A)(4), (6), (8); and DR 9-102(A)(1), (2) and DR 9-102(B)(1), (3), (4).

"On February 9, 1981, a hearing was held in which the charges against the Respondent were heard by the undersigned judge. The Respondent did not testify, and the essential facts are not in dispute. The evidence consisted of the following exhibits and stipulations:

1. Criminal Information in the case of United States of America v. Donald S. Lebowitz, in the United States District Court for the District of Maryland, Criminal Number H-79-0306. (Petitioner's Exhibit # 1).

2. Certified copy of docket sheet and docket entries on two (2) pages in the same case. (Petitioner's Exhibit # 2).

3. Certified copy of the Judgment and Probation/Commitment Order, dated October 4, 1979, filed on October 12, 1979, in the same case. (Petitioner's Exhibit # 3).

4. Copy of the transcript of proceeding before the Honorable Alexander Harvey, II, U.S. District Judge, on July 17, 1979, in the same case. (Petitioner's Exhibit # 4).

5. Copy of the transcript of sentencing hearing before the Honorable Alexander Harvey, II, U.S. District Judge, in the United States District Court for the District of Maryland in the same case. (Joint Exhibit # 5).

6. Copy of excerpt from transcript of proceedings, i. e. the testimony of Donald S. Lebowitz, before the Honorable C. Stanley Blair, on November 28, 1978, in the United States District Court for the District of Maryland in the case of United States v. Earl B. Williams, Criminal Action No. 77-0435 and Criminal Action No. 77-0589. (Petitioner's Exhibit 6).

7. Photostatic copies of checks (front and back), drawn by Donald S. Lebowitz to the order of Earl Williams, which reflect the following specific paid amounts:

January 8, 1973, No. 2344, $675.00

January 11, 1973, No. 2357, $270.00

February 7, 1973, No. 2428, $360.00

February 28, 1973, No. 2469, $405.00

August 24, 1973, No. 3030, $100.00

August 28, 1973, No. 3038, $170.00

(Petitioner's Exhibit # 7)

8. Certain portions of the testimony of Respondent before the Inquiry Panel hearing held on April 11, 1980, in the matter of Donald S. Lebowitz, Esquire, BC Docket Nos. 80-168-4-1 and 79-192-3.

9. Facts contained in Petitioner's Request for Admissions of Fact and Genuineness of Documents.

10. Interrogatories Nos. 17 and 18 and the answers to the same.

"Since the charges brought by Bar Counsel arose out of three separate matters, i. e., (1) the income tax conviction; (2)

payments to runners; and (3) payments to insurance adjusters, this Court will render both a finding of fact and a conclusion of law as to each.

"PART I

FINDING OF FACT

"In July 1979, Donald Lebowitz, a member of the Maryland Bar since 1963, was charged by Criminal Information in the United States District Court for the District of Maryland with violating 26 U.S.C., § 7206(1), (Fraud and false statements ... under penalties of perjury), for willfully failing to report $4,780.00 of additional taxable income on his 1976 individual tax return. (Petitioner's Exhibit No. 1). The additional tax liability on this amount was $2,370.00. Section 7206(1) states the following:

'Any person who

(1) Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter shall be guilty of a felony and, upon conviction thereof shall be fined not more than $5,000.00, or imprisoned not more than 3 years or both, together with the costs of the prosecution.' (Emphasis added).

"On July 17, 1979, Respondent appeared before United States District Judge Alexander Harvey, II, and offered a plea of guilty to the criminal information. The court accepted the guilty plea, fined the Respondent $2,000.00 and sentenced him to imprisonment for 26 months, suspending all but two months of the sentence. (Petitioner's Exhibit No. 3). The Respondent has stated that he knew and understood that he was understating his income. (P. 15 of the transcript).

"Prior to this conviction, the Respondent, in late 1977 or early 1978, received a Federal Grand Jury subpoena duces tecum at the initial stages of an investigation which had its "Thereafter, the Respondent entered into an agreement with the government whereby he agreed to fully cooperate with the government and to plead guilty to the tax charge. The Respondent fulfilled his obligations under the agreement by testifying for the government in runner trial of United States v. Williams and, according to Assistant U.S. Attorney Herbert Better, by cooperating with investigations of runners and insurance adjusters.

primary focus on runners. The Respondent appeared before the Grand Jury and offered to testify as to all matters and to answer any questions by government attorneys.

CONCLUSIONS OF LAW

"The offense proscribed by 26 U.S.C., § 7206(1) is infested with fraud, deceit and dishonesty, and involves moral turpitude. Attorney Grievance Commission v. Swerdloff, 279 Md. 296, 369 A.2d 75 (1977). Therefore, this Court finds that the Respondent violated DR 1-102(A)(3), by engaging in illegal conduct involving moral turpitude. Additionally, the Court finds that the Respondent, by engaging in said conduct, violated: (1) DR 1-102(A)(4), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (2) DR 1-102(A)(5), engaging in conduct that is prejudicial to the administration of justice.

"PART II

FINDINGS OF FACT

"Pursuant to the plea agreement of January 19, 1978 with the United States Attorney's Office, the Respondent testified on November 28, 1978, in the United States District Court criminal trial of Earl Williams that during the year 1973, Williams, who is not an attorney, referred personal injury cases to the Respondent on at least fifteen occasions. The Respondent admitted paying Williams amounts averaging $125.00 for each client brought in by Williams. (P. 8, Petitioner's Exhibit No. 6). The Respondent would, without the "The Respondent admitted that on numerous occasions between January 1, 1969 and December 31, 1976, he paid money to runners in return for clients in personal injury cases being referred to him. (P. 3, Petitioner's Request for Admissions of Fact and Genuineness of Documents). The Respondent terminated his relationship...