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In Re Damisch

OPINION FILED SEPTEMBER 29, 1967.

IN RE JOHN W. DAMISCH, ATTORNEY, RESPONDENT.


DISCIPLINARY PROCEEDING.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

The Board of Managers and Committee on Grievances of the Chicago Bar Association, as commissioners of this court under Rule 59 (now Sup. Ct. Rule 751), filed a report recommending that respondent John W. Damisch be suspended from the practice of law for a period of one year. Respondent has objected to this recommendation on various grounds.

Respondent was admitted to the bar of this State in 1950 and has since practiced law in Cook County. The complaint charges that respondent has been guilty of unethical conduct and practices in violation of the Canons of Professional Ethics and the public policy of this State in that pursuant to a scheme to breed litigation by the solicitation of persons having personal injury claims, respondent employed David E. Vogele and Paul Skidmore who solicited in excess of 125 clients for him in connection with which he made in excess of 120 payments to Vogele and at least 5 payments to Skidmore. In addition to denying all the material allegations of the complaint, respondent alleges, in his amended answer, that the constitutional guarantees of equal protection are violated by the practice of the Grievance Committee in restricting its prosecutions for solicitation to individual practitioners while exempting large law firms; that the Canon of Ethics which prohibits the solicitation of legal business is invalid; that disciplinary proceedings are now criminal proceedings and that the instant complaint is barred by the Statute of Limitations; that the amended report found respondent guilty of an offense not charged; that perjured testimony was used by the prosecution; and that respondent was denied access to prior written statements of prosecution witnesses as well as the complaint and report in a prior case involving a member of a large law firm.

Complainant's evidence consists principally of the testimony of the respondent under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1965, chap. 110, par. 60), cancelled checks representing respondent's payments to Vogele and Skidmore, and detailed testimony concerning four of the cases in which solicitation is alleged to have occurred. Respondent's evidence included his own denials of solicitation and his testimony that he employed Vogele as an investigator, the testimony of other attorneys who said Vogele acted as an investigator for them in some cases under somewhat similar circumstances, and numerous character witnesses.

Since the Committee on Grievances made no findings as to solicitation by Skidmore, we confine ourselves to the evidence in relation to Vogele. Respondent became acquainted with Vogele in 1954 when the latter apparently unsuccessfully engaged in the construction business. From about the middle of the following year until March, 1959, respondent paid him over $19,000. Checks representing this amount were introduced in evidence. Except for some checks relating to matters which he handled for Vogele, his company or his family, respondent testified they were all payments for investigative services which Vogele provided him. He said that there was no written contract in connection with his employment of Vogele and that, while there was no specific agreement as to an hourly rate for the work, compensation was paid on the basis of the time or effort involved in each case. In the overwhelming majority of the cases in which Vogele was involved, he did not furnish a written report, and he never submitted a bill. Respondent absorbed the cost of all of Vogele's "investigations", taking them as deductions on his income tax returns. In contrast to this, in those cases in which other investigators were employed (except where Skidmore did "investigating"), a written report was always filed, written bills were rendered, and the client was charged the cost of the investigation.

Payments to investigators other than Vogele were generally not in equal dollar amounts; the opposite is true as to the checks to Vogele, and those to Vogele were generally greater in amounts than those to other investigators. Some of the checks to Vogele which were unequal in amount were explained by respondent as being payments in cases in connection with which Vogele bore some extraordinary expense for which respondent agreed to reimburse him one-third or two-thirds, as Vogele normally paid all of his own expenses. Although some of the checks contained a notation of the name of a previous client, respondent could not relate the majority of them to any specific case. Files in cases closed prior to the formation of the partnership in 1960 had been destroyed, but the checks to Vogele had been delivered earlier to the Internal Revenue Service which was investigating him.

One of the cases (Strobehn) concerning which detailed testimony was adduced was not mentioned in the findings of the Commission and will not be considered here. The second involved Eunice Morgan (now Eunice Reid), who was then a minor, and her mother, Mary Morgan, who brought suit for Eunice. Eunice was injured in an automobile accident in 1956, and taken to the Cook County Hospital. Although she was there told that nothing was wrong with her, she was unable to walk. While her mother and she were waiting in the lobby of the hospital for a cab, David Vogele appeared. After he was told what had occurred, he urged Mrs. Morgan to take her daughter to another hospital. He then carried Eunice to his car, drove her to the second hospital, and carried her inside. At this hospital, it was discovered that Eunice had a fractured pelvis, and she remained there for treatment. Mrs. Morgan testified Vogele took her to respondent's office. This was denied by respondent who stated she came alone. A few days later she signed a contract in which she agreed that respondent would represent Eunice in her injury claim in return for a one-fourth contingent fee.

Both mother and daughter testified that they did not know Vogele or Damisch prior to the accident. However, in a discovery deposition which she gave in connection with her daughter's injury case, Mrs. Morgan said: "On the way out [of Cook County Hospital] I met a friend and I told him about the accident. * * * His name was Dave. I don't know his last name." When asked whether she knew him prior to the accident, she replied: "Sure, sure." Confronted with this inconsistency, she restated her present testimony. Asked why she referred to Vogele as a friend when she had never met him before, she said: "I meant that anyone, I didn't have to know him then, would be a friend if he was doing me a favor by taking my daughter to the hospital. Actually I didn't know Dave before."

On direct examination at the hearing, Mary Morgan stated that she gave a statement in connection with the investigation of respondent. His request for her statement was denied.

William Henry Brown was respondent's client in the third case concerning which there was extensive testimony. In 1957 Brown, a radio mechanic for Chicago Communications Service Company, had an automobile accident. After losing some time from his job, he returned to work still suffering from a stiff neck. David Vogele had brought his car into the service company to have some work done on its radio, and Brown was assigned to work on Vogele's radio. Either Vogele heard about Brown's accident from an outside source or Brown told him about it while working on his radio, but while Brown was so working, Vogele asked him if he needed an attorney. Upon receiving an affirmative response, Vogele went out to his car and got a pad of forms, brought it inside, and had Brown sign one, saying it was for an attorney friend of his. Vogele suggested Brown secure a letter from his employer stating that he had missed several days work and then took some pictures of Brown's damaged car. Either the same day or the next day, Damisch left a message at Chicago Communications for Brown to come into his office. When Brown did so, he saw the form he had signed for Vogele on Damisch's desk. At that time Damisch had him sign another form. Brown did not think he knew Vogele prior to his accident, although he could have worked on Vogele's radio before then. Damisch testified he had no recollection of this case.

Richard D. Klatzco, who talked to Brown for an attorney who represented Damisch in the present proceeding, testified that Brown told him that Erik Casey, Brown's supervisor at the time of the accident, recommended Damisch to Brown. This testimony was corroborated by Larry Peifer, who accompanied Klatzco when he interviewed Brown. Brown denied making this statement and also denied that Casey recommended Damisch. Casey made a similar denial and stated that he did not recommend Damisch and that Damisch had never represented him in any legal matter.

The fourth case involved George Wright who was also involved in an automobile accident in 1957. Following this accident, a man visited Wright's home. Wright said the man had him sign an agreement calling for a 30% contingent fee and then gave him Damisch's card, telling him to call Damisch within a week. Wright first identified this man as Vogele, but he later changed this testimony saying that it was Richard Leuckhardt who had visited him and that he had made an honest mistake when he first testified. This later testimony also disclosed that a representative of The Chicago Bar Association had visited Wright during the investigation of Damisch and that it was only after he had shown Wright a picture of Vogele and told Wright Vogele's name that Wright identified Vogele as the man who had contacted him. Wright said that, after he first testified, Leuckhardt visited him, and he then recognized Leuckhardt as the contact man. Leuckhardt and Wright's wife corroborated Wright's corrected testimony. Leuckhardt further testified that he was a long-time client of Damisch's, had referred several cases to him, and contacted Wright upon the request of a fellow employee who told him that Wright had been in an accident and was being given a rough time by the other party involved in it. He said he did not know if he had Wright sign anything.

Four attorneys testified that they had employed Vogele as an investigator. The first testified that he thought he received written reports in the majority of cases that Vogele investigated for him. He described the method used to determine Vogele's compensation, and this was quite similar to that which respondent testified he and Vogele used. He further testified that he terminated Vogele's employment when he heard what an unsavory character he was. The second said that Vogele furnished written reports in some of the cases he investigated for him and that he thought he paid Vogele in accordance with a memorandum which recited time and expenses incurred on each case. He said that Vogele may have referred some personal injury cases to him and that he did not pay Vogele for these references. The third said Vogele investigated only three cases for him, each of which Vogele referred to his office, and that Vogele was not very efficient. The fourth said he paid Vogele on the basis of time spent and that in most cases he thought Vogele furnished him with a record of this. He said that Vogele might have referred one or two cases to his office and that he believed that Vogele furnished him with written reports of his investigations.

The amended report of the Grievance Committee, as approved by the Board of Managers, found that respondent's denials that he employed Vogele as a solicitor in any of these cases were false. This finding was based upon the total amounts of money paid Vogele, the absence of written reports or bills, the unsatisfactory nature of respondent's explanation of the basis of Vogele's charges, respondent's practice of not charging clients for the payments to Vogele, but charging them for payments ...


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