Woll, In re

Decision Date09 March 1972
Docket NumberNo. 1,1
Citation194 N.W.2d 835,387 Mich. 154
PartiesIn the Matter of the Complaint against Arthur S. WOLL, before the State Bar Grievance Board, Arthur S. Woll, Respondent-Appellant.
CourtMichigan Supreme Court

Louis Rosenzweig, Detroit, for State Bar Grievance Bd., appellee.

Ivan E. Barris, Detroit, for respondent-appellant.

Before the Entire Bench.

SWAINSON, Justice.

On April 15, 1970, an Assistant Grievance Administrator of the State Bar of Michigan filed request for an investigation of attorney Arthur S. Woll. A formal complaint was filed on September 10, 1970, charging Woll with solicitation of workmen compensation cases through the use of touters or 'runners,' particularly one David Wood.

Hearing was held before Wayne County Hearing Panel No. 2 on November 3, 1970. Mr. Wood never personally appeared before the Hearing Panel because of poor health. He testified by deposition and, by stipulation of the parties, his deposition included two statements he had previously given. In the first statement, given to an investigator of the State Bar on March 6, 1970, he stated that defendant had paid him money for steering business to defendant. On the basis of this statement, the request for investigation was filed. Mr. Wood stated to the State Bar investigator that he had taken approximately ten people to defendant's office for processing of workmen's compensation claims and had been paid $10 to $15 for each referral. The second statement was prepared by defendant and signed by Mr. Wood. At defendant's request, Mr. Wood went to defendant's office on April 17, 1970, and executed an affidavit in which he denied receiving any money for soliciting business for defendant.

In his deposition, taken October 22, 1970, Mr. Wood testified that he had taken several different people to Mr. Woll's office; that he (Wood) had borrowed money from Mr. Woll on several occasions and that the loans were paid from his (Wood's) workmen's compensation settlement check in April, 1968.

Defendant Woll was called as a witness pursuant to Rule 15.11 of the Procedure and Administrative Rules of the State Bar Grievance Board. 1 Mr. Woll testified that he had loaned Mr. Wood money on several occasions, all of which had been repaid out of the proceeds of Mr. Wood's workmen's compensation settlement. In the course of his examination, the following occurred:

'Mr. Colombo (Member of Hearing Panel): And I want to direct a question to you in reference to Paragraph 4, Subparagraph A of that Complaint which reads as follows:

"That the charges of misconduct against said respondent are as follows: A, soliciting professional employment through touters, and in particular to one David Woods, to whom respondent between April of 1968 through June of 1969 paid money to Mr. Woods to bring in new clients who had Workmen's Compensation claims.'

Is that allegation true or false?

'Mr. Woll: I believe it's false, sir.

'Mr. Colombo: May we have a 'yes' or 'no'? Is it true or false?

'Mr. Woll: False.

'Mr. Colombo: In other words, under oath, you have never solicited--

'Mr. Woll: I have never--

'Mr. Colombo: Wait until I finish my question. Now, any person--I'm not limiting to Mr. Woods--any person, to solicit law cases for you.

'Do you understand my question?

'Mr. Woll: I do, sir.

'Mr. Colombo: What is your answer?

'Mr. Woll: I will not answer that question. I will take the Fifth Amendment.

'Mr. Colombo: That's all.

'Mr. Maiullo (Member of Hearing Panel): Would this reporter please go back and read Mr. Colombo's last question.

'(Whereupon the reporter reads back the last question.)

'Mr. Hyman (Defendant's attorney): May I confer with my client? * * * (Recess)

'Mr. Colombo: The charge says 'soliciting professional employment through touters.' I am directing this question now to him.

'Mr. Woll: No.

'Mr. Colombo: Your answer is no?

'Mr. Woll: My answer is no. Might I clarify--

'Mr. Hyman: No.

'Mr. Colombo: Was there any doubt in your mind when you answered the other question and decided to take the Fifth Amendment?

'Mr. Woll: Yes, there was.

'Mr. Colombo: What was the doubt?

'Mr. Woll: I wasn't sure what the question was.

'Mr. Colombo: The question was pretty clear.'

In closing arguments, counsel for the State Bar argued as follows:

'The other damaging piece of evidence against Mr. Woll goes to the general question propounded him by Mr. Colombo as to whether or not he had at any time and from anyone solicited clients--employed people or solicited clients. I put it to you that the question was quite clear.

'Mr. Woll is a practitioner of some years; he knows as well as you gentlemen of the Panel know that if a question is unclear, that the witness has a perfect right to ask the examiner to rephrase the question. In this case Mr. Woll did not see fit to ask for such rephrasal but answered it categorically by taking what is known as the Fifth Amendment.

'In this type of proceeding we can be confident that the taking of the Fifth Amendment at that time--even though it was subsequently retracted by Mr. Woll--and I will point out to you gentlemen that there is something to hide, there was something to hide; and that was the reason why the answer was so given. (Emphasis added)

'We have nothing here but testing credibility, actually, who is telling the truth. We have to add inferences.

'The inferences can be added by the taking of the Fifth as an indication in this case, even though subsequently denied--after, I might add, a recess at which time he had an opportunity to confer with counsel and think over the matter of the answer he gave in the heat of cross examination, where, as you gentlemen know, the truth usually comes out.

'This is something that you must consider very seriously in reaching a result.' (Emphasis added)

The Hearing Panel found Woll guilty and on February 10, 1971, filed its Order for Discipline, suspending him from the practice of law for three months and requiring him to pay $278.95 in costs.

On appeal to the full Grievance Board, counsel for the State Bar contended that it was proper to draw inferences of guilt from the fact that defendant availed himself of the right to avoid self-incrimination, thusly:

'Now, regardless of what my brother says, and I respect and admire him, but I think he is wrong in this instance, and in fact I am pretty sure he is wrong. There is an obligation on the part of an attorney to testify in proceedings of this kind. The rules specifically say that he may be called as an adverse witness, the same as any other adverse witness, and his testimony taken.

'Now, Spevack versus Kline (sic) ((1967) 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574) goes only to one thing, an attorney may refuse to answer because of the fifth amendment as jeopardizing his rights under the fifth amendment. But once that attorney takes the stand, he has waived his right to take the fifth amendment, particularly in a situation of this kind, where Mr. Woll had answered the question, I refuse to answer because of the fifth amendment, and then, after consultation with his attorney, then goes back and answers the question. That is a clear waiver of his rights.

'We have a right to take that testimony and we have a right to draw inferences from that testimony and from the fact of his previous testimony of his taking the fifth amendment.

'Now, I submit, if the members please--

'The Chairman: May I interrupt you, sir?

'What inference may you take from his taking the fifth amendment and then recanting and answering the question?

'What inference can the State Bar take?

'Mr. Rosenzweig: I think the State Bar can take the inference that Mr. Woll was getting cases from Mr. Wood and was paying money for cases, because the question was specifically asked not only about Mr. Wood but the specific question is--'

The State Bar Grievance Board affirmed Woll's conviction on June 18, 1971. He filed timely claim of appeal on June 30, 1971. 2

The problem we are dealing with is one of first impression in this State. Counsel for the State Bar Grievance Board contend that the case of State Bar of Michigan v. Block (1970), 383 Mich. 384, 175 N.W.2d 769, is controlling. We disagree. Block also involved the disbarment of an attorney from the practice of law. Block was called to testify at the disbarment hearing, pursuant to Rule 15. He objected to being called, but then answered all of the questions put to him and made no further objection. He contended on appeal that the procedure provided by Rule 15 violated his right against self-incrimination. Our Court held that Block was not coerced into answering the questions and, hence, his right against self-incrimination was not violated. Speaking for the Court, Justice Black stated (p. 391, 175 N.W.2d p. 773):

'We respond directly to the issue stated. There is no such fact or inference (of coercion). Mr. Block took the oath voluntarily and answered all questions freely.'

Justice Black further stated (p. 392, 175 N.W.2d p. 773):

'There simply was no threat by the grievance committee, or anyone else acting for the State Bar, of loss by Mr. Block of his license to practice. Nor was the testimony given by him incriminatory, as in Garrity (Garrity v. New Jersey (1967), 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562).'

If Woll had contended in this Court, as his attorney did at the grievance hearing, that he should not have been required to answer any of the questions put to him, we would have the same situation our Court dealt with in Block. Mr. Woll, however, is not objecting to the provisions of Rule 15. Rather, he is objecting to the comments that were made before the Hearing Panel and the Grievance Board by counsel for the State Bar. Counsel for the State Bar contends it was proper to comment upon defendant's initial refusal to testify. Defendant contends it was not.

Although it is not necessary to observe all of the rules of criminal law and procedure in a disbarment proceedings, 3 nevertheless our Court has long...

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