Attorney Grievance Commission v. Reamer

• Decision Date: 02 November 1977
• Docket Number: No. 12,12
• Citation: 281 Md. 323,379 A.2d 171
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Howard G. REAMER. Misc. (Subtitle BV)
• Court: Maryland Court of Appeals

Page 323

281 Md. 323

379 A.2d 171

ATTORNEY GRIEVANCE COMMISSION of Maryland v. Howard G. REAMER.

Misc. (Subtitle BV) No. 12.

Court of Appeals of Maryland.

Nov. 2, 1977.

L. Hollingsworth Pittman, Bar Counsel, Annapolis, for petitioner.

Michael E. Marr, Baltimore, for respondent.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

MURPHY, Chief Judge.

The issue before us in this attorney disciplinary proceeding is whether the petition of Bar Counsel seeking the interim suspension of a lawyer from the practice of law in Maryland should be granted.

Howard G. Reamer, a member of the Maryland Bar, was found guilty on October 7, 1976, by a jury in the United States District Court for the District of Maryland of 10 counts of a 21-count felony indictment charging violation of 18 U.S.C. § 1341 (1970) (mail fraud) ¹ and aiding and abetting in a mail fraud. ² He was sentenced to concurrent 5-year terms of imprisonment on each count and thereafter entered an appeal to the United States Court of Appeals for the Fourth Circuit.

On February 25, 1977 Bar Counsel filed a petition to suspend Reamer from the practice of law, pursuant to Maryland Rule BV 16, which provides:

"If an attorney is convicted in any judicial tribunal of a crime involving moral turpitude, . . . regardless of the pendency of an appeal . . . , the Bar Counsel shall file charges with the Court of Appeals alleging the fact of the conviction and requesting that the attorney be suspended from the practice of law. . . ."

The petition to suspend Reamer specifically alleged that the crimes of which he was convicted involved moral turpitude.

Answering the petition to suspend, Reamer alleged that Rule BV 16 violated the Fourteenth Amendment to the Federal Constitution and Article 23 of the Maryland Declaration of Rights because it authorized the summary suspension of an attorney from the practice of law without affording him due process of law without permitting completion of the appellate process.

We heard oral argument on the petition to suspend on April 15, 1977, at which time Reamer additionally contended that the evidence adduced at his trial did not demonstrate that the crimes of which he was convicted involved moral turpitude. As of that time, a transcript of Reamer's criminal trial had not been completed. We denied the petition to suspend, without assigning reasons. Bar Counsel filed a timely motion for reconsideration on May 13, 1977. We deferred acting on the motion pending receipt of supplemental briefs. We decided to permit reargument and heard the matter on October 4, 1977. As of that time, Reamer's trial transcript was still not completed, although a copy of the District Court's instructions to the jury was made available to us.

The indictment charged that Reamer, from a date prior to July 12, 1971, and continuing up to July 1, 1974, devised a scheme to defraud and obtain money and property by false and fraudulent pretenses from various insurance companies. It specified that in the course of his business as an attorney, Reamer represented clients alleged to be injured as a result of accidents involving individuals insured by insurance companies; that as part of the scheme Reamer referred his clients to various doctors and chiropractors, from whom he procured false and fraudulent medical reports and inflated bills which he submitted to insurance companies as a basis for settlement of his clients' claims; and that Reamer agreed with the doctors and chiropractors that he would pay the medical bills submitted by them in full or in such lesser amounts as he might determine, even though in all cases he represented to the insurance companies that such payments were made in the full amount. The indictment also charged that, as part of the scheme, Reamer engaged "runners" to procure victims of accidents as his clients and that they were referred to doctors and chiropractors with whom he was associated and fraudulently induced to report that they had sustained injuries. It was alleged in each count of the indictment that Reamer knowingly used the United States Mails, by making various specified mailings, for the purpose of executing his fraudulent scheme.

(1)

We first consider whether the crimes of which Reamer was convicted involved moral turpitude within the contemplation of Maryland Rule BV 16. It is clear from our cases that the term "moral turpitude" connotes a fraudulent or dishonest intent, and that a crime in which an intent to defraud is an essential element is a crime involving moral turpitude. Attorney Grievance Commission et al. v. Peter Christian Andresen, Md., 379 A.2d 159 (1977) (Misc.Docket (Subtitle BV) No. 23, September Term, 1974, decided September 26, 1977); Attorney Grievance Comm'n v. Walman, 280 Md. 453, 374 A.2d 354 (1977); Maryland St. Bar Ass'n v. Kerr, 272 Md. 687, 326 A.2d 180 (1974); Maryland St. Bar Ass'n v. Agnew, 271 Md. 543, 318 A.2d 811 (1974).

The essential elements of mail fraud under 18 U.S.C. § 1341 are the intentional devising of a scheme to defraud or to obtain money or property by false pretenses representations, or promises, and the use of the United States Mails for the purpose of executing the fraudulent scheme. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Johnston, 547 F.2d 282 (5th Cir. 1977); United States v. Shryock, 537 F.2d 207 (5th Cir. 1976); United States v. Street, 529 F.2d 226 (6th Cir. 1976); United States v. Perkal, 530 F.2d 604 (4th Cir. 1976); United States v. Britton, 500 F.2d 1257 (8th Cir. 1974); United States v. Schall, 371 F.Supp. 912 (W.D.Pa.1974). See also D. Crumbaugh, Survey of the Law of Mail Fraud, 1975 U.Ill.L.F. 237-53. Generally, the cases indicate that a scheme to defraud within the meaning of the mail fraud statute consists of a pattern of behavior calculated to deceive persons of ordinary prudence and comprehension. United States v. Beitscher, 467 F.2d 269 (10th Cir. 1972); Irwin v. United States, 338 F.2d 770 (9th Cir. 1964).

A number of state jurisdictions have held that a conviction under the federal mail fraud statute involves moral turpitude and warrants the suspension or disbarment of an attorney from the practice of law. See In re Leonard, 64 Ill.2d 398, 1 Ill.Dec. 62, 356 N.E.2d 62 (1976); In re Fumo, 52 Ill.2d 307, 288 N.E.2d 9 (1972); Niebling v. Terry, 352 Mo. 396, 177 S.W.2d 502 (1944); Ohio State Bar Association v. Mackay, 46 Ohio St.2d 81, 346 N.E.2d 302 (1976); In re Rosenfield, 111 R.I. 924, 304 A.2d 52 (1973); In re Comyns, 132 Wash. 391, 232 P. 269 (1925); In re West, 155 W.Va. 648, 186 S.E.2d 776 (1972). See also Ponzi v. Ward, 7 F.Supp. 736 (D.Mass.1934), where an alien convicted of using the mails to defraud was held to have committed a crime involving moral turpitude under the immigration statute; and State Dent. Coun. & Exam. Bd. v. Friedman, D. D. S., 27 Pa.Cmwlth. 546, 367 A.2d 363 (1976), holding that a dentist's license was properly suspended upon conviction of mail fraud since the crime was one involving moral turpitude.

In Maryland St. Bar Ass'n v. Kerr, 272 Md. 687, 326 A.2d 180 (1974), we stated, without discussing the point in any detail, that fraud was an element of the crime of mail fraud under 18 U.S.C. § 1341; and that the offense involved moral turpitude, thereby justifying disbarment of an attorney in the absence of mitigating circumstances permitting the imposition of a lesser sanction.

Reamer suggests that in recent years the mail fraud statute has been broadened in scope by decisions of the federal courts and, as a result, the standards for establishing fraudulent intent have been so relaxed that the offense can no longer be considered a crime which, as a matter of course, always involves moral turpitude. In this connection, Reamer argues that the mere fact that he was convicted of mail fraud does not mean that he perpetrated a fraud or possessed a fraudulent or dishonest intent. He claims that a conviction under the mail fraud statute is now permissible in a case similar to his own where, after the attorney settles the claim with the insurance company, he prevails upon the physician, in the best interests of his client, to reduce his fee because the overall settlement was not as advantageous as had been anticipated.

We need not decide in this case whether a conviction for mail fraud, in any and all circumstances, will always involve moral turpitude. It is enough that we determine in this case, from a review of the allegations of the indictment and the District Court's charge to the jury, and the jury's verdict, that the crimes of which Reamer was convicted plainly involved moral turpitude.

The District Court, after recounting the charges against Reamer, fully instructed the jury with respect to the elements of mail fraud. The court told the jury that Reamer could not be found guilty unless it found that he had a specific intent to defraud the insurance companies. It said:

"(T)he question here is not whether somebody in fact has been defrauded; it is not whether the defendant has profited by some transaction or whether someone else was injured thereby. But did the defendant, Howard G. Reamer, intend to defraud. If he intended to defraud by a plan or scheme, it is not important whether he accomplished it or not.

"The defendant denies that he acted with intent to defraud. It is the contention of the defendant that his acts were done for some purpose other than to defraud these insurance companies and that the circumstances of this case indicate that his acts were in good faith. Good faith is a complete defense to the crime of mail fraud. One who acts with honest intention or one who maintains a belief honestly held by him is not chargeable with fraudulent intent even though such honest intention or honest belief is erroneous. Evidence which establishes only that a person...