Goldman, Matter of
| Decision Date | 08 December 1978 |
| Docket Number | No. 13542,13542 |
| Parties | In the Matter of Joseph M. GOLDMAN, an Attorney and Counselor at law, Respondent. |
| Court | Montana Supreme Court |
Douglas C. Allen argued, Great Falls, Thomas H. Clary argued, Great Falls, Arnold Huppert, Jr., Livingston, Neil E. Ugrin, Great Falls, for appellant.
Douglas R. Drysdale argued, Bozeman, Robert J. Emmons argued, Great Falls, Joseph M. Goldman, Missoula, for respondent.
On September 27, 1976, a citation was issued out of this Court to Joseph Goldman, of Missoula, Montana, an attorney admitted to practice before this Court since 1948, directing Goldman to answer charges leveled against him in a complaint filed on the same date by the Commission on Practice.
The Commission on Practice acts under the aegis of this Court (Order Establishing Commission on Practice, Cause No. 10910, January 5, 1965) for the purpose of receiving, investigating, and reporting on allegations of misconduct of lawyers in the State of Montana.
The complaint against Goldman (hereafter "attorney") stated 11 counts of misconduct by him in the practice of law. He filed his answer on November 12, 1976. He set up 3 defenses: first, he stated the charges as a whole and on their face did not constitute grounds to warrant discipline against him; second, he denied outright the charges of the complaint against him; and, third, he alleged the charges should be dismissed because of unreasonable delay in the filing of the charges, citing that: (1) there were indictments pending against him, (2) charges had been made that he had been engaged in a homicide conspiracy and (3) the lapse of time prevented him from having a fair opportunity to defend.
On September 6, 1977, after proceedings in the usual course before the Commission on Practice, the Commission filed its report, findings and recommendations. The Commission had dismissed the allegations of counts 1, 2 and 9 against the attorney; and sustained in full the charges against him in all other counts. It recommended the attorney be disbarred from the practice of law in the State of Montana. The report, findings and recommendations were unanimously signed by all members of the Commission.
The report came on for hearing before this Court on August 25, 1978, In camera, with counsel appearing for both the Commission on Practice and the attorney.
Now, having fully considered the arguments of counsel, the said Commission report, findings and recommendations, and the underlying transcript and record, we conclude the report and findings of the Commission should be accepted and adopted by this Court and punishment fixed as hereafter provided. In the paragraphs following, we shall discuss our reasons in detail.
First, we will discuss the counts under which the attorney is charged, the evidence we find in the record with respect to those counts and contentions of the parties with respect to the evidence. Second, we shall discuss the applicable law and our reasons for accepting the report and findings of the Commission. Third, and lastly, we shall fix the punishment and explain our reasons for so doing.
Here it is charged the attorney, representing Raymond J. Johns, on January 29, 1971, submitted to the Industrial Accident Board a medical report from Dr. Henry W. Hogan, which was false in that it greatly exaggerated the claimant's degree of disability. It is further alleged the attorney knew of the falsity of the report at the time the report was submitted.
In his answer, the attorney admits he represented Mr. Johns, and that he submitted a report on January 29, 1971 from Dr. Henry W. Hogan but denies remaining allegations of count 3.
Dr. Hogan testified before the Commission that he examined Johns once on January 26, 1971 in Dr. Hogan's office. Claimant had received a back injury when a large scraper he was operating hit a bump and Johns landed quite hard on the seat. Dr. Hogan's examination revealed that though he could bend forward easily, the claimant had difficulty straightening up; he had pain on percussion over the left lumbrosacral joint, muscle spasm area bilaterally and a decrease of pinprick perception on the left sacral nerve distribution. The rest of the examination was normal. On that basis, Dr. Hogan determined the claimant was suffering from a partially herniated lumbar disc and gave him a 25 percent disability of the body as a whole.
Before the Commission, Dr. Hogan testified the disability was not permanent and that he did not mean to indicate a permanent disability in his report. But Hogan also testified he did not relate to the attorney that in his opinion claimant did not have any permanent disability.
Thereupon, the witness Hogan was confronted with his testimony before the Grand Jury in Lewis and Clark County, on December 10, 1975, where Dr. Hogan had testified claimant did not have any permanent disability, and that he had related this to the attorney. Dr. Hogan said in his Grand Jury testimony that the attorney said, "Well . . . give him something." This was said before the doctor wrote the report, according to the Grand Jury testimony.
At this point, the Chairman of the Commission interrupted the interrogation to state the Commission would consider the Grand Jury testimony as substantive evidence. We will discuss the legal aspects of this ruling further in this opinion.
The attorney himself testified before the Commission. When asked about the Johns medical report, the attorney testified, "I believe it to be true."
The Commission also called Dr. Walker Schemm, as an expert, who testified that the symptoms contained in the Johns report, that is, stiffness and numbness, which were worse when claimant was inactive, were not typical symptoms for a herniated disc. He also testified in 85 percent of the cases involving a herniated disc, he would expect to find abnormalities on examination such as weakness, or loss of sensation or reflex changes, none of which he found in Dr. Hogan's report.
The evidence is clear the medical report on claimant Johns was materially exaggerated. The conflict in the evidence as to whether the attorney knew of the material misrepresentation was resolved by the Commission in concluding that count 3 had been substantiated. The Commission is supported by substantial evidence in the record. It had a right to view the attorney's credibility on this point in the light of all the other facts and circumstances of the case.
This count charges the attorney represented Joe Assiniboine and in the course of that representation, he presented to the Industrial Accident Board a false medical report dated February 27, 1971, written by Dr. Henry W. Hogan and at the time the report was prepared and submitted, the attorney knew the report was false in that it exaggerated and overstated the disability of claimant.
In his answer, attorney admits the representation of Joe Assiniboine, and that he submitted the medical report dated February 27, 1971, written by Dr. Henry W. Hogan, but denies every other charge against him in the count.
In his testimony before the Commission, Dr. Hogan brought out that he had written 2 medical reports on Joe Assiniboine on October 19, 1970, because two industrial accidents and two carriers were involved. One medical report referred to a disability of the right ankle and the other to a disability of the right knee. With respect to the particular accident of July 10, 1970 for which the attorney was representing claimant, the doctor found claimant had a probable lumbar disc herniation. He found the ankle condition to be subacute with no likely improvement within the next 18 months and the necessity of some surgical intervention in the form of vein stripping. He found him totally incapacitated for usual activities.
Dr. Hogan examined claimant again on February 4, 1971 and wrote his second report on February 27, 1971 on which the charges are based. Again, he found a probable lumbar disc herniation with serious doubt as to whether any treatment, medical or surgical would have a curative effect. He considered claimant permanently disabled and did not know which disc had herniated, though he felt it was high in the lumbar region.
Before the Commission, Dr. Hogan denied he had ever told the attorney claimant Assiniboine was not so badly injured or damaged as his reports indicated.
Again Dr. Hogan was confronted with his testimony before the Grand Jury. There, on December 10, 1975, the doctor had testified that before he had sent his written evaluation over to the attorney, he had talked to the attorney on the telephone, and told him the claimant Assiniboine was not so badly damaged or injured as the report indicated. He further told the attorney that Assiniboine could have worked as a supervisor at his job. The doctor also testified before the Grand Jury that although he had rated Assiniboine as permanently disabled, that this was not true and he and the attorney had discussed a way of justifying this by relating the alleged permanent disability to the job he liked to do rather than the job he could do. He further testified he felt the diagnosis of a lumbar disc herniation was probably not a true diagnosis.
The attorney, in his testimony, denied he had ever submitted any report from any doctor that was false.
With respect to the Assiniboine claim, Dr. Schemm testified since there was no neurological deficit when Dr. Hogan checked claimant and where basically the patient had complaints of back pain and right ankle pain, the normal course would be, before coming to a final conclusion of herniated disc, to investigate further.
The evidence is conflicting, but its weight sustains the conclusion of the Commission that count 4 had been substantiated.
Here it is alleged that the attorney represented Richard Pearce and on his behalf submitted a false medical report dated February 9,...
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