Summary
imposing one-year suspension where attorney forged documents to obtain substantial sums of money from various persons including client
Summary of this case from Florida Bar v. KlausnerOpinion
No. 35082.
March 15, 1967.
George Earl Brown, Miami, for The Florida Bar, complainant.
Benedict A. Silverman, in pro. per.
This cause is here on petition of Benedict A. Silverman, respondent, to review the judgment of the Board of Governors of The Florida Bar that he be suspended from the practice of law for a period of one year and thereafter until he shall have demonstrated to the Board of Governors and to this Court his rehabilitation and fitness to resume the practice of law and that he pay the costs of these proceedings in the sum of $355.55.
The complaint charged that respondent forged certain mortgages, releases, satisfactions, assignments and affidavits and used the forged documents to obtain substantial sums of money from one or more persons, including a client, and converted to his own use some $12,000.00 received on behalf of a client.
The findings of fact, incorporated in the Report of the Referee, are as follows:
"As to the acts complained of, it was readily admitted by the Respondent that he was guilty of such acts.
"From the uncontradicted testimony, it is the undersigned's opinion that the Respondent recognizes the gravity of the mistakes made by him, and since the committing of such acts has undergone a change, has repented and has rehabilitated himself and is accepted and believed by his present clients to be a man of integrity and trustworthiness."
The Referee's summary of evidence is as follows:
"The testimony submitted to the undersigned was confined to the testimony offered by the Respondent, as the Respondent admitted in his testimony that he had committed the acts set forth in the Complaint — as he did in his Answer — and testified that full restitution of any misused funds had been made, and thereafter proceeded to produce some 19 witnesses as character witnesses. These witnesses in substance testified that the Respondent had completely rehabilitated himself; that he had made every effort to gain his self-respect and to make amends for his wrongdoings; that they find him now to be completely trustworthy and honest and have no hesitancy in recommending him or using him as their counsel.
"I will not comment explicitly upon the evidence, the sole contention of the Respondent being that since having committed the acts complained of he had made full restitution, repented his acts of wrongdoing and has completely rehabilitated himself, and since no testimony was submitted by the attorney for The Bar to contradict any of the testimony offered by the Respondent, it must be accepted that Respondent has completely and fully rehabilitated himself and completely accepts his wrongdoings, misconduct and unethical practices."
We have examined the record and heard argument of counsel. Our conclusion is the respondent is guilty as charged. According to the referee's report he has made complete restitution. It is the judgment of this Court that the respondent be suspended from the practice of law for a period of one year and thereafter until he shall have demonstrated to the Board of Governors his fitness to resume the practice of law and shall have paid the costs of these proceedings in the amount of $355.55.
It is so ordered.
THORNAL, C.J., THOMAS and CALDWELL, JJ., and McMULLEN, Circuit Judge, concur.
ERVIN, J., dissents.
It appears to me that suspension of Respondent for a period of one year and thereafter until he demonstrates to the Board of Governors of The Florida Bar his fitness to resume law practice is too harsh under the circumstances revealed in these proceedings.
The acts of his misconduct, admittedly bad indeed, were committed on or before January 10, 1962, more than five years ago. They were not brought to the attention of The Florida Bar until October, 1964, after the Respondent had made full restitution to parties he had aggrieved by his misconduct, and in particular one Mr. Max Stadler.
Restitution was made by means of an agreement entered in 1961 whereby Respondent caused $100,000 in cash and first mortgages to be placed in trust with members of the Stadler family as trustees. Therefrom restitution was duly made.
However, Max Stadler and others took $25,000 from the trust in excess of restitution, for recovery of which Respondent caused suit to be brought. This suit was won. Out of this litigation episode, Max Stadler, three and one half years after restitution, brought Respondent's prior misconduct to the attention of The Florida Bar after Respondent refused to yield to threats of exposure from Stadler and withdraw the suit. Such was the predicate for these disciplinary proceedings.
Since 1962 it appears from the record Respondent has conducted himself honestly, trustworthily and with credit to the legal profession. He has been repentant and has done all within his power to rectify his previous transgressions.
Restitution having been fully made and the Respondent having made a good professional rehabilitation during the past several years consistent with repentance and honest practice, I think little good can be achieved at this late date by imposing a year's suspension. Respondent by his own admission stands before the Bar and public guilty of past unprofessional conduct. What he did can never be condoned and his conduct justifies strong reprimand. But disruption of his practice by suspension now, long after his derelictions, as belated punishment to him and as an example to other members of the Bar, hardly seems warranted in view of the stated restitution, rehabilitation and lapse of time. Suspension might well be a morale-shattering blow to the Respondent far outweighing any need to punish or any admonitory significance the example of suspension would be to members of the Bar. If I read correctly the record of these proceedings and have properly observed Respondent's demeanor, he has had brought deep into his inner consciousness the grievousness of his transgressions and has tried his level best to make amends. With Shakespeare, I believe in these circumstances it would be a "cruelty to load a falling man." Compare The Florida Bar v. King, Fla., 174 So.2d 398. I think it would suffice to reprimand him and place him upon a year's probation.