In re Anonymous No. 16 D.B. 82

DISSENTING AND CONCURRING OPINION

To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania

ELLIOTT, Vice Chairman,

November 20, 1984 — By a majority vote, this Disciplinary Board of the Supreme Court of Pennsylvania found that respondent [ ] violated Disciplinary Rule 1-102(A)(3) (relating to conduct involving moral tur*582pitude); 1-102(A)(4) (relating to conduct involving dishonesty) (on two charges) and 1-103A (relating to the possession of unprivileged knowledge of a violation of Disciplinary Rule 1-102 that was not reported to a tribunal or other authority), and recommended a one-year suspension on these charges arising out of the Abscam investigation. The same majority dismissed two additional charges against respondent that involved additional violations of the same Disciplinary Rules cited above, as well as a violation of Disciplinary Rule 1-102(A)(6) (relating to conduct that adversely reflects on a lawyer’s fitness to practice law).

While I concur in the Disciplinary Rule violations found by the board, I dissent from the recommended discipline, and would also find additional violations of the Disciplinary Rules. As the board’s findings of fact amply demonstrate, the underlying facts of respondent’s conduct are not in dispute. Respondent defended this conduct by alleging that he did not realize his conduct constituted violations of the Disciplinary Rules and that his close ties to Attorney [A], the architect of the Abscam scandal, clouded his judgment. These factors were accepted by the hearing committee and the majority of the board in determining what disciplinary violations existed and in recommending only a one year suspension.

I cannot agree. Respondent’s conduct clearly violated the disciplinary rules. Moreover, respondent’s self-alleged lack of independent judgment is certainly not a reason to expedite his return to the practice of law. I recommend a minimum three year suspension. Board members Curran and Hammerman concur in the dissent.

*583I. THE BOARD’S FINDINGS OF FACT

The board’s findings basically recite the undisputed facts of respondent’s conduct. However, certain specific findings (specifically numbers 17, 20, 41, 46, 47, 55 & 56) deal with the “justification” for respondent’s conduct. In each case the board found that either respondent did not know that his conduct violated the disciplinary rules or he committed acts based on his relationship with Attorney [A],

These findings are simply irrelevant. It is incomprehensible that a lawyer would not realize that attempted bribery of a public official would violate the Code of Professional Responsibility. Moreover, respondent’s relationship with Attorney [A] cannot justify his independent conduct in violating the Disciplinary Rules.

II. THE BOARD’S DISMISSAL OF CERTAIN CHARGES

I would find several additional violations of disciplinary rules by respondent. First, as to Charge I, the majority did not find a violation of D.R. 1-102(A)(6) (relating to conduct that adversely reflects on a lawyers fitness to practice law). Under any interpretation of the Code of Professional Responsibility, respondent’s admitted conduct adversely reflected on his fitness to practice law. This is particularly true when the majority found violations involving moral turpitude and dishonesty.

Secondly, I would find that respondent violated at least D.R. 1-102(A)(6) with respect to Charge II. It is clear that respondent knew of [F] and was aware of how payments were being recorded on law firm books. Respondent was also admittedly aware of Attorney [A’s] role in the Abscam payoffs. Thus, if re*584spondent did not know that money was being laundered, it was only because he conveniently looked the other way. By his actions, respondent aided and abetted Attorney [A] in laundering the money. This is sufficient to establish a violation of the disciplinary rules. See In Re: Anonymous Nos. 41 D.B. 79 and 42 D.B. 79, 21 D. & C.3d 294 (1981).

III. DISCUSSION

The Abscam investigation represents a sad epic, raising many questions about the candor and quality of law enforcement. Equally disturbing, however, was the resultant public perception that public officials were for sale and that lawyers stood ready to grease the wheels in return for a cut of the action.

The judicial system has reviewed the entire affair and those involved. However, no matter what the final determinations are regarding the guilt of the various Abscam defendants or the legality of the law enforcement effort, the public and the bar has a distinct concern. The Code of Professional Responsibility exists to. maintain the integrity of our profession and to preserve the public’s trust, which is an essential element of the legal profession.

The maxim that “ignorance of the law” is no excuse must apply with compelling force to lawyers who violate the Disciplinary Code and abuse their privilege of practicing law by perpetrating crimes. Lawyers know that facilitating bribery of public officials violates a lawyer’s professional responsibility. Moreover, lawyers must demonstrate the independent judgment and strength of character to avoid blatantly unethical and illegal misconduct. The Supreme Court recently gave short shrift to the argument here advanced by respondent, adopting the finding of the Disciplinary Board that “Respon*585dent’s choice of loyalty over integrity must result in a recommendation of disbarment.” Office of Disciplinary Counsel v. Tumini, 499 Pa. 284, 453 A.2d 310, 314 (1982).

Respondent was an active and essential part of this illegal conspiracy. The board’s majority found that “Respondent did not believe that the payment or an acceptance of the [bribe] money was illegal since, they, to his knowledge, were only being asked to sit and listen to the sheik’s position.” When a $50,000 payment was made to a congressman, respondent learned of it and himself took $4,500 in cash. Shortly thereafter when another congressman received a payoff, respondent also took another $4,500 in cash. The board’s majority found that respondent was fully aware of the amounts of the payoffs to both congressmen. Respondent’s safe deposit box also held the $5,000 payoff cash for a congressman. After another payoff to a third congressman, respondent took $2,500 in cash. When a city councilman was paid off, respondent took $3,000 in cash. When a second city councilman was paid off, respondent readied for yet another $3,000 in cash.

Respondent knowingly took $20,000 in cash in six separate installments following each bribe of a public official. Respondent’s insensitivity to the incremental sale of his license to practice law makes his alleged “naivety” a cruel insult to the public and to the members of the legal profession.

Respondent’s conduct assumes even more egregious proportions. He went to Washington, D.C. and impersonated an official of the U.S. Immigration and Naturalization Service. Respondent was video-taped by federal law enforcement authorities as he posed as [I] or [I, different spelling] promising representatives of an arab sheik that he could accommodate their immigration visa problems.

*586Respondent also actively participated with [A] in laundering Abscam money by forming [F]. The finding of the board’s majority that respondent was not aware of the illegal enterprise which [F] was borne out of strained credulity, particularly in light of respondent’s multiple illegal acts in furtherance of this massive conspiracy.

Respondent’s illegal actions are an insult to the public and a discredit to the legal profession. They certainly merit more than a one year suspension from the practice of law. A one year suspension merely rewards and encourages this blatantly illegal conduct.

Nor does respondent’s subsequent cooperation with law enforcement officials justify overly lenient discipline. As the board has stated:

“The board has considered that both respondents have cooperated with law enforcement authorities in connection with the prosecution of [A]. While such cooperation is laudable, it also involves an element of self-interest in lessening their respective criminal exposures, even where testimony is given without formal immunity. Respondent’s cooperation clearly does not change the facts of their disciplinary violations and the board concludes that it should not affect the appropriate disciplinary recommendation in this case.” In Re Anonymous Nos. 41 D.B. 79 and 42 D.B. 79, 21 D.&C.3d 294 (1981). Significantly, in that case which also involved attorneys taking acts to facilitate the bribing of a public official, the Supreme Court ordered three year suspensions after a board recommendation of a one year suspension.

IV. CONCLUSION

For all of the foregoing reasons, the undersigned member respectfully requests your honorable court *587not to accept the recommendation of the board relative to the imposition of discipline and to order the imposition of at least a three year suspension from the practice of law for respondent.

ORDER

NIX, C.J., And now, this December 21, 1984, upon consideration of the Report and Recommendation of the Disciplinary Board and the dissenting and concurring opinion dated November 20, 1984, it is hereby ordered that [respondent] be and he is suspended from the Bar of the Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice Flaherty and Mr. Justice Papadakos dissent and would issue a rule to show cause why respondent should not be disbarred.