In re Fleck

• Decision Date: 04 December 1969
• Docket Number: No. 19386.,19386.
• Parties: In the Matter of Aaron FLECK, Sidney Fleck, and Charles Fleck. CLEVELAND BAR ASSOCIATION, Appellee, v. Sidney FLECK, Charles Fleck and Aaron Fleck, Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.2d 1040 (1969)

In the Matter of Aaron FLECK, Sidney Fleck, and Charles Fleck.

CLEVELAND BAR ASSOCIATION, Appellee, v. Sidney FLECK, Charles Fleck and Aaron Fleck, Appellants.

No. 19386.

United States Court of Appeals Sixth Circuit.

December 4, 1969.

Bennett Yanowitz, Cleveland, Ohio, for appellants; Kahn, Kleinman, Yanowitz & Annan, Cleveland, Ohio, on brief.

Burt Fulton, Cleveland, Ohio, for appellee.

Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and TAYLOR^*, District Judge.

PER CURIAM.

The Supreme Court of Ohio suspended indefinitely from the practice of law three Cleveland attorneys, a father and two sons. Cleveland Bar Assn. v. Fleck et al., 172 Ohio St. 467, 178 N.E.2d 782, cert. denied, 369 U.S. 861, 82 S.Ct. 948, 8 L.Ed.2d 19, rehearing denied, 370 U.S. 914, 82 S.Ct. 1254, 8 L.Ed.2d 406.

The United States District Court for the Northern District of Ohio, in conformity with its local rules, ordered the three attorneys to show cause why their names should not be stricken from the roll of attorneys admitted to practice before that court. Counsel for the three attorneys and the Cleveland Bar Association agreed that the case would be submitted to the District Court upon the record of the proceedings before the Ohio Board of Commissioners, the Supreme Court of Ohio, the Supreme Court of the United States, briefs of counsel in those proceedings and briefs and arguments of counsel before the District Court. The three attorneys elected not to introduce any additional evidence in the District Court, either in the form of oral and written testimony or exhibits, although they were afforded an opportunity to do so.

Chief District Judge Girard E. Kalbfleisch made an independent determination of the facts concerning the conduct of the three attorneys and whether that conduct was so grievous as to require disbarment. An order was entered striking the names of the three attorneys from the roll of attorneys eligible to practice before the District Court. We find that the District Court complied with the standards of independent determination as set forth by the Supreme Court in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, and Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342.

The findings of fact of the District Judge are attached as Appendix A to this opinion. Reference is made to the appendix for a more comprehensive statement of details.

Unlike the facts in In re Ruffalo, supra, respondents were fully apprised of the two charges set forth in the complaint filed by the Cleveland Bar Association. These charges never varied and were the charges before the Supreme Court of Ohio when it reached its conclusion that the three attorneys should be suspended indefinitely. These same two charges and the evidence introduced before the Board of Commissioners were before the District Court when it made its independent determination. We conclude that these three attorneys were not deprived of due process.

We further hold that the present case is distinguishable on its facts from United Mine Workers of America Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426, and Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89. We conclude that the record supports the findings of the District Court that the practice of these attorneys of having clients borrow money for their attorneys' fees in Workmen's Compensation cases from the Hamlin Finance Company (a client of the same law firm) and then applying to have the amount of the loan included in a lump sum computation by the State Industrial Commission was a deliberate scheme to obtain attorneys' fees in violation of § 4123.57 (B) of the Ohio Revised Code.

Affirmed.

APPENDIX A

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE UNITED STATES DISTRICT COURT.

(Filed October 23, 1968.)

KALBFLEISCH, Chief Judge.

This matter is before the Court pursuant to an order that respondents show cause why they should not be disbarred from the practice of law in this Court. The respondents were indefinitely suspended from the practice of law in Ohio on December 6, 1961. (Cleveland Bar Association v. Fleck et al., 172 Ohio St. 467, 178 N.E.2d 782.) On June 15, 1962 respondents were suspended forthwith from the practice of law in this Court, and pursuant to Rule 1(E) of the Rules of this Court respondents were ordered to show cause why they should not also be disbarred from practice in this court. Rule 1(E) provides in part:

"Disbarment and Discipline. Any member of the bar of this court may for good cause shown and after an opportunity has been given him to be heard, be disbarred, suspended from practice for a definite time, reprimanded, or subjected to such other discipline as the court may deem proper.

Whenever it is made to appear to the court that any member of its bar has been disbarred or suspended from practice or convicted of a felony in any other court he shall be suspended forthwith from practice before this court and, unless upon notice mailed to him at his last known place of residence he shows good cause to the contrary within ten days, there shall be entered an order of disbarment, or of suspension, for such time as the court shall fix."

The natural effect of a state court disbarment is to destroy the fair private and professional character of an attorney, which fair character requirement is a continuing prerequisite to practice in the federal courts. Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585. State court disbarment is not conclusively binding on the federal courts, however, and disbarment by the state court does not result in automatic disbarment by the federal court. This Court is required to determine for itself the facts of the respondents' conduct and whether that conduct has been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342; In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117.

The case was submitted to this Court upon the record of disbarment proceedings before the Ohio Board of Commissioners, the Supreme Court of Ohio, the Supreme Court of the United States, and the briefs of counsel in those proceedings and the briefs of counsel in this Court.

The state court record reveals the following:

1. Charles Fleck is the father of Aaron Fleck and Sidney Fleck. Prior to their disbarment by the Ohio Supreme Court, the respondents engaged in the general practice of law in the Cleveland area under the firm name of Fleck and Fleck. The firm enjoyed a substantial practice and it specialized in handling Workmen's Compensation cases.

2. In November of 1959 the Cleveland Bar Association filed a complaint with the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline wherein the respondents were charged with misconduct in the following two respects:

(1) "On or about November 25, 1957, the Respondents entered into a written agreement with Truck Drivers\' Union Local No. 407 wherein and whereby the Respondents agreed to represent the individual members of said Union as their attorneys in proceedings before the Industrial Commission of Ohio, and permitted and aided in the distribution of copies of said contract to the individual members of said Union with whom they had no personal relations, said copies containing the telephone number of these respondents, for the purpose of soliciting professional employment from said individual members."

(2) "That after the date of said contract, said Respondents, appearing before the Industrial Commission of Ohio, and presenting claims on behalf of diverse claimants as their attorneys, aided claimants in preparing and permitted and caused them to file papers with the Industrial Commission representing alleged indebtedness of claimants as bona fide, when said Respondents well knew that said representations were false and that said indebtedness was incurred for the sole purpose of paying attorneys\' fees to these Respondents. Relator further says that said Respondents well knew that the compensation, the approval of which was sought from the Industrial Commission, would not have been paid on a commuted basis if the Commission had been informed of the fact that it was for the payment of attorneys\' fees to them."

3. Pursuant to Rule XXVII of the Rules of the Supreme Court of Ohio (now Rule XVIII per amendment of March 11, 1964), a three-man panel from the Board of Commissioners was convened for the purpose of determining the propriety of the allegations of misconduct filed against the respondents. A hearing before the panel commenced on March 21, 1960 and several witnesses were called by both the relator and the respondents.

4. With respect to the charge of misconduct resulting from the contract between Local 407 and the respondents, the panel found that for a consideration of $500.00 paid by the Union the respondents entered into a contract with the Union whereby respondents would represent Union members at no cost in certain specified procedures in Workmen's Compensation cases. The contract also provided that:

"should the individual members wish to retain the services of the Attorneys (Fleck and Fleck) for additional proceedings such as Determination of Permanent Partial Disability, determination of permanent Total Disability, or Settlement of Claims, the attorneys shall not contract with the individual members to charge more than 25% of the award under this section on a contingent fee basis."

5. The panel further found that the respondents charged clients who were not members of Local 407 a one-third contingency fee in cases involving a determination of permanent partial or total disability claims; that the established rate for attorneys' fees in Cleveland for such services was one-third of the award; and therefore respondents were extending a fee preference to the members of Local 407.

6. The panel...