BOARD MEMBERS FREDERICK G. BUESSER. JR. JOHN L. COTE. CHAIRPERSON MSGR. CLEMENT H. KERN DAVID BAKER LEWIS. SECRETARY FRANK J. MCDEVITT. D.O. WILLIAM G. REAMON
LYNN H. SHECTER, VICE-CHAIRPERSON
STATE O F M I C H I G A N
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JOHN F. X. DWAIHY LOUNSEL/ADMINISTRATOR
SUITE 1 2 6 0 333 W. FORT STREET DETROIT. MICHIGAN 4 8 2 2 6
TELEPHONE: 013) 9 6 3 - 5 5 5 3
This i s t o inform the Courts of the S t a t e of Michigan of the following Order of Discipline:
F i l e No. 36469-A Related: 34906-A
BERNARD LAtlPEAR (P16373), 18711 W. Ten Mile Road, Su i t e 200, Southf i e l d, MI 48075, by Attorney Discipl ine Board Macomb C i r c u i t Hearing Panel "A" , a s affirmed by the Attorney Discipl ine Board decid-
ing a Pe t i t i on f o r Review f i l e d by the Grievance Administrator.
(1) (2)
Reprimand; Effect ive September 24, 1980.
The Formal Complaint charged t h a t Respondent was convicted, by a plea of g u i l t y , of a federal misdemeanor, t o wit: a iding and abet t ing Medicaid kick-back payments in v io la t ion of T i t l e 4 2 , USC Section 1396 ( H ) (8 ) ( I ) , T i t l e 18, USC Section 2 and the Disci- pl inary Rules s e t f o r t h a t MGCR 953 (1) (5) and 969 and Canon 1 , DR 1-102 ( A ) ( 1 ) (3-6) of the Code of Professional Responsibil i ty. Counts 11 and 111 of the Formal Complaint a l leged tha t Respondent violated New Jersey S ta tu te s by improper representat ion of o u t s t a t e residents seeking t o adopt Michigan-born in fan t s , a1 legedly i n
violat ion of New Jersey S ta tu te s 2A: 98-1 and 2A: 98-2 and the Disciplinary Rules s e t fo r th a t MGCR 953 (1-5) and Canon 1 , DR 1-102 ( A ) (1) (3-6) of the Code of Professional Responsibi l i ty .
The Hearing Panel dismi ssed, without prejudice, Counts I I and 111 of the Formal Complaint a l leging v io la t ion of New Jersey adoption s t a t u t e s . Based upon Respondent's federal misdemeanor con- vict ion, the Panel found t h a t Respondent had violated ElGCR 953 ( 2 ) and (5 ) ; however, t he Panel considered several f ac to r s i n mi t i g a t i o n of the federal misdemeanor conviction including Respondent's hereto- fore long-standing, unblemished personal and professional record of more than f i f t e e n years and the f a c t t h a t Respondent faced very substant ial lega l defense f ees by a t r i a l of the charge and severe income loss due t o extensive physical i n j u r i e s sustained i n an accident occurring a t about the time of prosecution. The Grievance
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Administrator appealed the Panel decision t o the Discipl ine Board, claiming an abuse o f d i s c r e t i o n by the Panel i n l imi t ing the d i sc ip l ine t o a Reprimand. Respondent did not appeal the Reprimand,
b u t did appeal the dismissal without prejudice of Counts I1 and 111. Before the Board, Respondent maintained his claim of innocence in the criminal matter, se t t ing forth i n his Appeal Brief a long a n d detailed l i s t of reasons why he pled guilty to the federal charge. The Board, a f te r examination of the whole record and consideration of the degree of demonstrated culpabi 1i ty , affirmed the decision of the Hearing Panel, including the without prejudice dismissal of Counts I1 and 111. No appeal of the Board decision was f i l ed w i t h the Supreme Court.
October 20, 1980.
David Baker Lewis, Secretary ATTORNEY DISCIPLINE BOARD
SPECIAL NOTE OF ADB COUNSEL IN RE THE REPRIFIAND OF B . LAMPEAR: Criminal conviction (misdemeanor or felony) of an attorney usually results i n a more severe disciplinary action. Therefore, i n the absence of a Board Opinion (normally issued only when discipl ine i s modified o r increased), and due t o the unusual circumstances giving r i s e to the decision of Reprimand, the following i s offered t o the Bar and the p u b l i c : (1) The Board was presented w i t h several apparently compel 1i n g m i ti- g a t i n g fac tors and extenuating circumstances, including Respondent's unrefuted argument t ha t extensive physical in ju r ies suffered i n an accident caused a loss of income needed t o successfully defend the misdemeanor charge. (2) The finding of criminal responsibil i ty is supported only by the U.S. Dis t r ic t Court "Judgment and Conviction Order" (G.A. Exhibit #2). The now-repudiated gu i l ty plea aside, there is an absence of any independent invest igative information o r corroborative evidence which m i g h t tend t o show actual gui l t . The Board did not t o t a l l y discount the effect of the o f f i c i a l conviction; however, the financial arrange- ments between Respondent and his physician-client do not appear to be prima facie improper. Respondent's connection with the alleged Medicaid transaction, asirecounted in the Panel proceedings, was portrayed as tenuous - this could be a basis f o r a finding of minimal culpability. (3 ) The U.S. Dis t r i c t Court judge eventually substantial ly reduced Respondent's sentence of probation of two years. (4 ) The U.S. Attorney's o'ffice apparently promised dismissal of the charges against Respondent should the physician-codefendants prevail i n the i r appeals. (5) The Michigan Supreme Court has required consideration of a l l m i t i - g a t i n g fac tors attendant t o criminal convictions and i n the in te res t of individual jus t i ce , h a s provided the Board and i t s Panels a degree of l a t i tude i n assessing appropriate d isc ipl ine i n such cases. I n re Lewis, 389 Blich 668 (1973); In re Sauer, 390 Mich 449 (1973).
Counsel /Admi n i s t ra t o r ATTORNEY DISCIPLINE BOARD