Matter of Olkon

• Citation: 324 NW 2d 192
• Decision Date: 31 August 1982
• Docket Number: No. 51102.,51102.
• Parties: In the Matter of the Petition for Disciplinary Action Against Ellis OLKON, a Minnesota Lawyer.
• Court: Minnesota Supreme Court

324 N.W.2d 192 (1982)

In the Matter of the Petition for Disciplinary Action Against Ellis OLKON, a Minnesota Lawyer.

No. 51102.

Supreme Court of Minnesota.

August 31, 1982.

Michael Hoover, Administrative Director on Professional Conduct, Richard Harden, Asst., Lawyers Professional Responsibility Bd., St. Paul, for appellant.

Jack Nordby, Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

YETKA, Justice.

Ellis Olkon was convicted of two counts of attempted theft by swindle involving insurance fraud on January 9, 1980. He was sentenced to two concurrent five-year prison terms but the terms were stayed and probation was ordered along with restitution and a $10,000 fine. We affirmed the conviction on August 29, 1980, and the United States Supreme Court subsequently denied certiorari. State v. Olkon, 299 N.W.2d 89 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981).

Olkon was suspended from practice on March 28, 1980, pending final disposition of disciplinary proceedings. Judge Miles Zimmerman was appointed referee and a hearing was held before him on January 14, 1982. On March 1, 1982, the referee filed findings of fact and conclusions of law with a recommendation that Olkon be suspended for two years, that period to include the time of suspension from March 1980, and that Olkon be placed on probation for the period of his criminal conviction probation or for five years, whichever is longer. In addition, the referee recommended that Olkon be prohibited from handling personal injury cases during the probation period. The director challenges this recommendation on appeal and is requesting that this court order Olkon disbarred.

The facts relating to Count I of the petition for discipline were considered by this court in our review of Ellis Olkon's criminal conviction. State v. Olkon, 299 N.W.2d 89 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981). The facts are set forth in detail in Olkon, 299 N.W.2d at 92-101 and only will be summarized here.

In early 1978, Hennepin County law enforcement officials requested Walter Powers, a Hennepin County police officer, to take part in an undercover investigation of medical fraud activities. Pursuant to this plan, Powers established a doctor-patient relationship with a medical fraud suspect, Dr. Robert Coifman.

In June 1978, Powers, using the alias Eugene Bowers, and Deputy Sheriff Pamela Lavarre, who used the alias Elizabeth Saunders (and who posed as Powers' girl friend), went to Dr. Coifman's office and told Coifman that they had been in a car accident. Powers complained of lower back pain. Dr. Coifman, his business manager, Nathan Neff, and Powers discussed the possibility of therapy and the wearing of a neck brace. Several days later, Neff referred Powers to respondent for legal assistance.

Prior to his first meeting with Dr. Coifman, Powers had been issued a driver's license and a Hennepin County welfare card under his fictitious name. The Edina Police Department aided in the preparation of a fictitious police accident report which indicated that Powers and Lavarre were involved in an auto accident on June 16, 1978. Law enforcement officials also solicited and received the cooperation of State Farm Mutual Insurance Company and Travelers Insurance Company in the investigation, who were requested to settle any claims made against them on behalf of Powers. The Hennepin County Medical Society also was aware of the investigation.

On June 22, 1978, Powers called respondent's office for an appointment. This conversation and subsequent calls to, and interviews in, respondent's office were tape recorded by Powers. Powers made an appointment to see respondent. On June 26, 1978, Powers and Lavarre went to respondent's office. Respondent's paralegal-secretary, Deborah Juhl, had them execute legal retainer agreements and medical release forms.

Powers and Lavarre were then introduced to respondent as Bowers and Saunders. They indicated that they were living together, were unemployed, and described the accident and their insurance. Lavarre said that her shoulders and lower neck hurt and that she had headaches. Powers indicated that he had lower back pain and stated that he was to be hospitalized. They informed respondent of their contact with Dr. Coifman. Respondent expressed skepticism concerning Dr. Coifman because Coifman's bills were high and because of Coifman's use of hypnotherapy. The following conversation took place at the meeting. ("O" represents Olkon; "P" represents Powers):

O: You don\'t look sick. But with Coifman on, anybody\'s sick. Is something really wrong with you?

P: Ah, well, not really. But they decided that I should ah — that I maybe I could get something out of it so they said I should come and see ya.

O: Well, I don\'t want to know anything about that.

P: Then I won\'t tell you anything about that.

* * * * * *

O: Ah, what I am concerned about is because under no fault insurance, you need one of three things, in order to qualify for a — for a personal injury lawsuit. 1 — you have to lose at least 2 months from work, but that\'s not gonna be the case, as neither one of you were working at the time of the accident. Or — 2 — if you have ah, up to $4,000 worth of medical bills, or hospital medication bills, which if you see Coifman, won\'t be a problem. I mean, I, I, I\'ve never met that guy, and I don\'t want to meet him, but, ah, I guess I don\'t want to look a gift horse in the mouth. Cause I\'m unhappy with him, ya know. And the third thing is to have a permanent injury and that you\'ll probably have, cause Coifman finds permanent injury.

* * * * * *

O: You\'re hurting, in pain, possibly hospitalized.

P: Don\'t laugh.

Olkon, 299 N.W.2d at 94. Respondent then notified the Travelers Insurance Company and State Farm of the accident and of the possible cause of action. Respondent forwarded the accident report and repair bill.

Thereafter, Powers received medical treatment for lower back pain from both Dr. Coifman and Dr. Joseph Engel, a consulting psychiatrist who had no relationship to Dr. Coifman. Respondent received medical reports which described Powers' treatment.

Olkon subsequently settled the alleged claim of Powers and distributed the proceeds. Based on these activities, the grand jury indicted Olkon for insurance fraud and the jury convictions followed along with the petitions for disciplinary action.

The facts relating to Count II of the petition for discipline are not in dispute. On December 20, 1978, Olkon received $12,000 in insurance settlements for the claim the subject of Count I. On December 21, 1978, he disbursed the proceeds to his client Powers, to Dr. Coifman and to himself for attorney fees. In addition, he set aside $1,538 to reimburse the Hennepin County Welfare Department for medical bills which it had paid.

The entire amount of the settlement initially was placed in Olkon's trust account. Olkon's legal secretary testified that when she made out the checks for disbursement, she inadvertently included the amount of the welfare department's possible lien in the check to Olkon for his fees, and placed that check in Olkon's personal account. Olkon left for vacation and did not return until January 15, 1979. When he returned, he saw the cancelled check and corrected the mistake by writing a check for the amount of the welfare lien and depositing it in the trust account. He then wrote the county a letter advising them that the money was being held in trust pending a claim.

The referee found that "while the failure to deposit the money in a trust account was improper, it was not intentional, of momentary duration only, and understandable under the circumstances." He concluded that the facts did not warrant discipline and recommended that Count II be dismissed.

The director accepted all of the referee's findings and conclusions except Findings 10 and 11 and Conclusion II.¹ The director recommends disbarment.

This court has concluded that the referee's findings, conclusions and recommendations are legally correct and justified by the facts presented. We therefore adopt them in full as the findings, conclusions and disposition of this court.

On appeal, the director urges that this court order automatic disbarment because of the activities of respondent. As this court has stated previously, however, "we * * * recognize that felony convictions do not result in automatic disbarment."²Matter of Hedlund, 293 N.W.2d 63, 67 (Minn.1980); Matter of Scallen, 269 N.W.2d 834 (Minn.1978); In re Scholle, 274 N.W.2d 112 (Minn.1978). Rather, whether to order disbarment involves a consideration of the unique circumstances of each case and "each case must be decided on its own facts." Hedlund at 67. Disbarment is the extreme or ultimate penalty for a lawyer's misconduct and exists primarily as a necessary adjunct to criminal prosecution penalties, to protect the public and to deter lawyers who may otherwise be tempted to perform illegal acts. Accordingly, we must examine the individual facts of this case to determine the sanction to be imposed upon respondent.

While the final responsibility for determining the discipline to be imposed upon an attorney rests with this court, "we have in the past and will in the future continue to place great weight upon the recommendations of the referee * * *." In re Scallen at 841. After examining the facts of this case, with due deference to the findings of the referee, we find that the penalty of disbarment is not necessary to serve the stated goals of protecting...