Office of Disciplinary Counsel v. Shorall

• Decision Date: 07 June 1991
• Citation: 527 Pa. 413,592 A.2d 1285
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Thomas J. SHORALL, Respondent.
• Court: Pennsylvania Supreme Court

Page 1285

592 A.2d 1285

527 Pa. 413

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Thomas J. SHORALL, Respondent.

Supreme Court of Pennsylvania.

Argued March 5, 1990.

Decided June 7, 1991.

Edward A. Burkardt, Asst. Disciplinary Counsel in Charge, Mark G. Weitzman, Pittsburgh, for petitioner.

Edward F. Urbanik, Pittsburgh, for respondent.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and CAPPY, JJ.

OPINION

NIX, Chief Justice.

This Court, in response to the Report and Recommendation filed in this matter on July 12, 1988, by the Disciplinary Board issued a Rule to Show Cause Why Respondent, Thomas J. Shorall, should not be disbarred from the practice of law in the Commonwealth of Pennsylvania. Having considered the pleadings and briefs filed by Respondent and the Office of Disciplinary Counsel (ODC), having heard oral argument, and having fully reviewed the record submitted by the Board, we order that the Rule to Show Cause be discharged and that Respondent be suspended from the practice of law for a period of three (3) years.

The immediate request for the Petition for Discipline originated from an Order entered by this Court on October 24, 1986, directing that the matter surrounding Respondent's conviction of Misprision of Felony, in violation of 18 U.S.C. § 4, be referred to the Disciplinary Board pursuant to Rule 214(f) of the Pennsylvania Rules of Disciplinary Enforcement, Pa.R.D.E. 214(f).

Thus, on March 2, 1987, Petitioner, the Office of Disciplinary Counsel filed a Petition for Discipline in which it was alleged that Respondent violated the following provisions of the Disciplinary Rules of the Code of Professional Responsibility:

(1) DR 1-102(A)(3), prohibiting an attorney from engaging in illegal conduct involving moral turpitude;

(2) DR 1-102(A)(4), prohibiting an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;

(3) DR 1-102(A)(5), prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice; and

(4) DR 1-102(A)(6), prohibiting an attorney from engaging in any other conduct that adversely reflects on his fitness to practice law.

Petitioner also alleged that the guilty plea entered into by Respondent was an independent basis for discipline pursuant to Pa.R.D.E. 203(b)(1). ¹

The ODC, in its Petition, alleged that in the course of committing the crime of Misprision of Felony, by willfully concealing the commission by Messrs. Gerald Schall and John Curry of the felony of Interstate Transportation of Property Obtained by Fraud, Respondent actively engaged in the cover-up by making misrepresentations to two FBI Agents, an Assistant United States Attorney, two IRS agents, and a Federal Grand Jury investigating the fraud, to support Schall's and Curry's false version of what occurred.

The Petition for Discipline was referred to a Hearing Committee and on November 17, 1987, and January 15, 1988, hearings were held in this matter. On July 12, 1988, the Hearing Committee filed its Report and Recommendation finding that Respondent voluntarily and knowingly made misrepresentations to the FBI and a Federal Grand Jury. The Committee concluded that by his misconduct Respondent violated all of the Disciplinary Rules charged in the Petition for Discipline and, accordingly, recommended to the Disciplinary Board that Respondent be suspended for six months because of his plea of guilty to Misprision of Felony and his violation of the accompanying Disciplinary Rules.

Exceptions were filed by the Office of Disciplinary Counsel and the matter was referred to the Disciplinary Board. On April 5, 1989, after hearing oral argument from both Petitioner and Respondent, the Board issued its Report and Recommendation. The Board rejected the Hearing Committee's findings of fact that Respondent voluntarily and knowingly made false statements of fact during the investigation of the underlying felonies. The Board found that the Committee's conclusion that Respondent violated the charged Disciplinary Rules was not supported by a preponderance of clear and satisfactory evidence as he was not charged with the underlying felony or with perjury. Rather, the Board concluded that Respondent's conduct merely reflected poor judgment and it recommended public censure.

The ODC filed a Petition with this Court under Pa.R.D.E. 207(c)(2) ² alleging there is clear and convincing evidence on the record that Respondent violated the charged Disciplinary Rules and that he made the misrepresentations to the FBI Agents and the Federal Grand Jury, as found by the Hearing Committee and that Respondent's misconduct warranted at least a six month suspension, as recommended by the Committee. By a May 12, 1989, order, we granted Petitioner's petition under Pa.R.D.E. 207(c)(2) and after Respondent's Brief was filed, by a September 1, 1989, order we issued upon Respondent a Rule To Show Cause why he should not be disbarred. Respondent's request for oral argument was granted pursuant to Pa.R.D.E. 208(e)(3) ³. Having been briefed and argued, this matter is now ripe for disposition.

In Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987), we had occasion to quote from Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986), wherein we discussed our scope of review and how this Court is guided with respect to evaluating the evidence in attorney disciplinary matters as follows:

Before analyzing the testimony offered in support of the charges it must be noted that this Court's review of attorney discipline is a de novo one. Thus, we are not bound by the findings of either the Hearing Committee or the Disciplinary Board. Matter of Green, 470 Pa. 164, 368 A.2d 245 (1977); Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976). Although we are free to evaluate the evidence presented before the Hearing Committee, In re: Silverberg, 459 Pa. 107, 327 A.2d 106 (1974), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982), we may be enlightened by the decisions of these triers of fact who had the opportunity to observe the demeanor of the witnesses during their testimony. Matter of Green, supra; Office of Disciplinary Counsel v. Walker, supra; Office of Disciplinary Counsel v. Campbell, supra,.... Nor is the petitioner required to establish the misconduct through direct evidence. The ethical violations may be proven solely by circumstantial evidence. Office of Disciplinary Counsel v. Grigsby, [493 Pa. 194, 425 A.2d 730 (1981) ]. Lemisch's Case, 321 Pa. 110, 184 A. 72 (1936); Salus's Case, 321 Pa. 106, 184 A. 70 (1936).

Stern, supra, 515 Pa. at 72, 526 A.2d at 1181.

Accordingly, we will now consider those specific findings of fact made by the Hearing Committee. In May 1982, two individuals, Mr. Schall and Mr. Curry, formed Shanna Industries of which Mr. Schall was President. From September 1982 to September 1983, Shanna Industries provided cleaning services and supplies to Southeastern University in Washington, D.C., at allegedly overinflated prices. During this time Mr. Curry was the business manager of Southeastern University. As part of the scheme to defraud the University, the two principals conspired to enter into "sweetheart contracts" between the two organizations which involved "kick-backs" to Mr. Curry. As part of this arrangement Mr. Curry signed two checks issued by Southeastern University, one in the amount of $13,291, payable to Shanna Industries, and the other in the amount of $11,147.17, payable to another company owned by Schall.

On June 1, 1983, Sarah Miller, Schall's secretary, went to Curry's office and obtained the checks from him. Curry insisted that Miller endorse the checks over to him. Miller then contacted Schall, who directed her to endorse the checks and give them to Curry, which she did. The proceeds of the two checks constituted "kick-backs" from Schall to Curry for Curry's having induced Southeastern University to enter into the fraudulent "sweetheart contracts" with Shanna Industries. Curry's wife, Annette, then deposited the checks into the Currys' saving account. The proceeds of the checks constituted property obtained in furtherance of a scheme and artifice to defraud and as the checks were transported in interstate commerce, the felony in question was thereby committed.

Specifically, Respondent's involvement resulted from being asked by Schall, a former client, to be present when Schall was to be questioned by Federal authorities. As a result of this participation it was alleged that Respondent was requested by Schall to tell a false story concerning the delivery of the two checks. Petitioner claims that Respondent proceeded to tell four different versions regarding the delivery of the checks in question. First he allegedly told one version to the FBI on March 7, 1984; he told a second version to the FBI, the IRS, an Assistant United States Attorney and the Federal Grand Jury on February 20, 1985; he told a third version to the same Assistant United States Attorney; and he told a fourth version at the November 17, 1987, disciplinary hearing.

The conviction of Respondent and his related violations of the Disciplinary Rules directly resulted from the web of deceit he wove by offering four different accounts of the events involved to investigating authorities. These versions represented conflicting attempts by Respondent to conceal and legitimize an otherwise fraudulent scheme. The somewhat convoluted history of Respondent's representations is as follows: in late 1983, Southeastern University auditors discovered that two of their checks drawn in the amount of $13,921 and $11,147.17, respectively, were deposited in the checking account of Mr. and Mrs. Curry. Mr. Curry stated that he was unaware of the delivery...