Office of Disciplinary Counsel v. Stern

• Decision Date: 03 June 1987
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Peter M. STERN, Respondent. 551 Disciplinary 2
• Court: Pennsylvania Supreme Court

Page 1180

526 A.2d 1180

515 Pa. 68

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Peter M. STERN, Respondent.

551 Disciplinary 2

Supreme Court of Pennsylvania.

Argued Jan. 29, 1987.

Decided June 3, 1987.

Paul J. Burgoyne, West Chester, for petitioner.

Arthur W. Lefco, Philadelphia, Harold Cramer, Harrisburg, for respondent.

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

OPINION

NIX, Chief Justice.

This Court, in response to the Report and Recommendation filed in this matter by the Disciplinary Board of the Supreme Court of Pennsylvania ("Board"), has issued a Rule to Show Cause why Respondent, Peter M. Stern, 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, having heard oral argument, and after a full review of the record submitted by the Board, we are constrained to conclude that the Rule to Show Cause must be made absolute and Respondent disbarred.

I.

The Office of Disciplinary Counsel filed a Petition for Discipline on January 14, 1985, in which it alleged that Respondent had violated four provisions of the Disciplinary Rules of the Code of Professional Responsibility, specifically:

(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)(6), prohibiting an attorney from engaging in other conduct which adversely reflects on his fitness to practice law; and (4) DR 1-102(A)(7), prohibiting an attorney from counselling or assisting a client in conduct the attorney knows to be illegal or fraudulent.

The immediate predicate for the Petition for Discipline was a letter in response to a request from the Office of Disciplinary Counsel, from the United States Attorney for the Eastern District of Pennsylvania. That letter stated that Respondent had been one of the principal government witnesses in the prosecution of William O'Farrell, President of Teamsters' Union Local 500, for attempting to extort a Fifteen Thousand Dollar ($15,000.00) bribe from one of Respondent's clients. The United States Attorney further related that he had been aware of an allegation made by the Federal Bureau of Investigation that Respondent had made an unrelated payment of Five Thousand Dollars ($5,000.00) to O'Farrell on behalf of another client, and that Respondent made admissions concerning that allegation.

The Petition for Discipline was referred to a Hearing Committee on February 14, 1985. ¹ That Committee conducted a hearing on September 26, 1985, during which a detailed stipulation of facts was adopted, and filed its Report on February 27, 1986. The Hearing Committee found that Respondent had violated only DR 7-102(A)(7), and recommended a private informal admonition by Disciplinary Counsel or, at most, a private reprimand by the Board. See Pa.R.D.E. 204(a)(5), (6). Exceptions were filed by the Office of Disciplinary Counsel and, on April 9, 1986, the matter was referred to the Board. In its Report and Recommendation, transmitted to this Court on July 7, 1986, the Board concluded that Respondent had violated DR 1-102(A)(3), DR 1-102(A)(4), DR 1-102(A)(6), and DR 7-102(A)(7), and recommended the imposition by this Court of a public censure, see Pa.R.D.E. 204(a)(3), and the payment of costs, see Pa.R.D.E. 208(g)(1).

Upon consideration of the Board's Report and Recommendation, this Court issued upon Respondent a Rule to Show Cause why he should not be disbarred. Respondent's request for oral argument was granted. ² Having been briefed and argued, this matter is now ripe for disposition.

II.

Our scope of review and the criteria which guide us in evaluating the evidence in attorney disciplinary matters have been recently set forth in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986):

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. A2d 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, supra; Lemisch's Case, 321 Pa. 110, 184 A. 72 (1936); Salus's Case, 321 Pa. 106, 184 A. 70 (1936).

Id. at 579-80, 506 A.2d at 875.

We will first consider the findings of fact made by the Hearing Committee. Prior to the hearing in this matter, Respondent and the Office of Disciplinary Counsel entered into detailed stipulations which were ultimately adopted by the Hearing Committee as findings of fact. The relevant facts as set forth in those stipulations are as follows. ³

Respondent was born in 1941 in Philadelphia. He graduated from Cheltenham High School, where he was editor-in-chief of the school newspaper. Respondent then attended Dartmouth College, where he was vice-president of his class and managed the campus radio station. While at Dartmouth Respondent won a fellowship which enabled him to work for academic credit at the National Labor Relations Board in Washington, D.C. Respondent graduated from Dartmouth with high honors in 1963 and subsequently entered the University of Pennsylvania Law School, where he was an editor of its Law Review, wrote several articles on labor law, and assisted a professor in writing a labor law treatise. He graduated from law school cum laude in 1966 and was admitted to the Pennsylvania Bar in November of that year.

Following law school Respondent practiced labor law for three years as an associate with the firm of Goodis, Greenfield, Narin and Mann. In 1969 Respondent moved to the firm of Blank, Rome, Comisky and McCauley ("Blank, Rome") and became a partner in that firm three years later. At Blank, Rome, Respondent supervised several other attorneys in the labor section. He also chaired the Philadelphia Bar Association's Labor Law Committee during the mid-1970's.

Respondent was responsible for some of Blank, Rome's most significant labor clients, including numerous clients in the food and paper converting industries. One of the largest of those clients was the Frankford Quaker Grocery Company ("Frankford Quaker"), which served a local supermarket chain. In 1980 Frankford Quaker experienced financial difficulties due to a shrinkage in volume and sought the cooperation of Local 500 of the Teamsters Union, which represented Frankford Quaker's employees, with regard to work assignments. Officers of Frankford Quaker asked respondent to deliver Five Thousand Dollars ($5,000.00) to William O'Farrell, President of Local 500, in the hope that O'Farrell would not oppose the requested assistance. Respondent initially refused to deliver the money but eventually acceded to his client's demands when Frankford Quaker threatened to retain other counsel. Respondent met with O'Farrell on two occasions, successfully delivering the Five Thousand Dollars ($5,000.00) on the second occasion.

Some time later O'Farrell demanded that another of Respondent's clients, Data File, Inc., pay O'Farrell a Fifteen Thousand Dollar ($15,000.00) bribe. Respondent refused and advised Data File not to make such a payment, whereupon he was discharged as counsel. In early 1982 the Federal Bureau of Investigation ("FBI") began investigating bribes allegedly extorted by O'Farrell. Respondent met with two Assistant United States Attorneys and an FBI agent in or about January, 1983. During the meeting, Respondent acknowledged his delivery of Frankford Quaker's funds to O'Farrell. ⁴ Based on the information provided by Respondent concerning O'Farrell's alleged attempt to extort money from Data File, Inc., the federal government obtained the indictment of O'Farrell in the United States District Court for the Eastern District of Pennsylvania. Respondent served as the principal prosecution witness. ⁵

In Paragraph 11 of the Stipulations Respondent admits that his delivery of the funds to O'Farrell in violation of the Labor Management Relations Act violated DR7-102(A)(7). The Stipulations also include various evidence in mitigation, which shall be discussed later.

In addition to adopting the Stipulations summarized above, the Hearing Committee made two additional findings of fact:

6.1 On the second occasion, when O'Farrell accepted the $5,000 proferred by Respondent, O'Farrell told respondent that he, O'Farrell[,] considered it a gift and that he did not intend to do anything for it.

6.2 On the second occasion when Respondent proferred and O'Farrell accepted the $5,000.00, Respondent did not expect or intend that O'Farrell would be influenced in respect to any of his actions, decisions, or duties as a representative of Frankford Quaker employees.

The Disciplinary Board in its Report and Recommendation to this Court questioned these two findings but did not decide whether Respondent's payment to O'Farrell was a bribe or a gift. The Board did, however, recognize that...