November 2009

Murdoch J. Hertzog has been around for quite a while. So, too, has certain of his office furnishings.

He was born in 1926 and was admitted to the Michigan bar on January 8, 1952. In 2001, then age 75, he pled guilty to a misdemeanor charge of assault and battery in exchange for the dismissal of a charge of fourth-degree criminal sexual conduct. He failed to report this conviction to the Michigan disciplinary authority, as required by state rules. He also answered in the negative a question on his 2003-2004 State Bar dues statement that asked whether he had been convicted of any misdemeanor or felony after the date he received a license to practice law in any jurisdiction, and he failed to respond to that question on his 2004-2005 and 2005-2006 dues statements.

At some point, years after the conviction, a former client named Cheryl filed a grievance against him. She alleged that the elderly man had patted her on her buttocks in his office, made sexually explicit remarks to her, and told her that she should not worry about his legal fees because the balance could be paid on his "Couch of Restitution." After investigating, formal disciplinary charges were lodged against him by the Grievance Administrator. He was charged with violating state ethics law in regards to the misdemeanor conviction, as well as his inappropriate conduct toward Cheryl.

While the disciplinary charges were pending, the Grievance Administrator filed a notice of the intent to introduce the testimony of two different female clients, Sandra and Tina, who would testify about Hertzog's sexual proclivities and his "Couch of Restitution." The Administrator believed that their testimony was probative in establishing the similarity of a scheme, plan, or system, and also went toward Hertzog's state of mind, intent, and opportunity. A hearing panel concluded that such testimony would be relevant in light of Hertzog's denial of the allegation that he had acted in a randy manner with Cheryl. The panel further believed that such testimony would assist the panel in its assessment of witness credibility. Lastly, the panel found that the probative value of such pattern and practice evidence would substantially outweigh any unfair prejudice to the Respondent. At the disciplinary hearing, the Administrator called a woman named Cammie, the victim in the 2001 criminal case that resulted in Hertzog's conviction for assault and battery. She stated that she retained Hertzog in 2000 to assist her in getting an annulment from her then-husband. Cammie described one meeting with her lawyer that occurred in his office. When she went to shake his hand at the conclusion of the meeting, he unexpectedly squeezed her breast through her clothes and touched her groin area in a tickling fashion. Upon leaving his office, she immediately called her sister-in-law, who advised her to notify the police. At the time, Cammie also told her mother and former spouse about the incident. Upset with the situation, she telephoned Hertzog and asked him why he had touched her. He replied that he had thought she wanted him to do so. Cammie asked him for a refund, which he provided. Cammie’s former husband testified that she had returned home crying after meeting with the elderly lawyer. After a discussion between the two, Cammie telephoned Hertzog while her husband listened in on the conversation between her and Hertzog and heard the elderly man say that he had thought she wanted him to touch her. The witness also heard Hertzog offer to pay one of Cammie's house payments for every time that she would have sex with him.

Former client Cheryl also testified at the disciplinary hearing. She stated that, in 2002, her husband retained Hertzog in a criminal matter and that she also retained him in a termination of parental rights matter. She said she was satisfied with his work on her behalf, but that it was a very traumatic time for her. She testified that she and Hertzog worked in the same building and that she went to his office on almost a daily basis to discuss her case. At the conclusion of virtually every meeting, he tapped her on her buttocks as she departed the room. Cheryl never protested this action by Hertzog and was not offended by it; instead, she characterized it as a practice common to older people. At some point, however, Cheryl met with him at his office after Hertzog's secretary had left for the day. After Cheryl discussed her husband's sexual addiction class, Hertzog made a suggestive statement, then stood up, shut the blinds, pointed to his groin area and told her, in effect, to look at what she was doing to his "front porch." She testified that she became nervous, stood up, and asked how much she and her husband owed him. Hertzog replied by telling her not to worry about his legal fees because she could pay the balance on his "Couch of Restitution." Sandra and Tina were then called to testify to events that were markedly similar to those experienced by Cammie and Cheryl. Hertzog himself testified, and denied making any sexually suggestive and inappropriate remarks to Cammie, Cheryl, Sandra or Tina. He also said that he had never touched them in a sexual or inappropriate manner. As to the Cammie situation, he explained that, at the urging of his attorney at the time, he offered a plea of guilty to the assault charge in 2001, even though he was innocent, because he feared that a jury would be "unpredictable." Notwithstanding his assertions, the hearing panel concluded that Hertzog had engaged in wrongdoing and that his testimony was "considerably less than credible" than that of the women called to testify. Unsurprisingly, Hertzog has a disciplinary history. The very first disciplinary proceeding ever lodged against him resulted in thirty-day suspension due to a conflict of interest. Further, he was admonished in 1994 based on a finding that he improperly suggested an exchange of sexual acts for legal services while representing Sandra.

In the instant proceeding, the hearing panel recommended that he be suspended for 120 days. He appealed the hearing panel's decision to the ADB. The ADB increased the sanction to a 180-day suspension, a significant change based on Michigan disciplinary practice because he is now required to go through a reinstatement proceeding in the event that he ever wants to practice law again; suspensions of 179 days or less have no such reinstatement requirement. The ADB affirmed all of the earlier findings and rejected his claim that the expunction of the misdemeanor conviction had an impact on the lawyer disciplinary case. In addition, the ADB rejected his argument that the hearing panel erred in admitting the testimony of Sandra and Tina. Under Michigan law, evidence of "prior bad acts" is generally not admissible to prove the character of a respondent in order to show action in conformity therewith. However, "prior bad acts" testimony may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. The ADB ruled:

The high degree of similarity of these separate accounts established respondent's system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees. Both Sandra...and Tina...testified that respondent used the phrase "couch of restitution," and closed the blinds before making sexual remarks to them. The panel did not err in finding a commonality in respondent's approach indicating a scheme, plan, or system and the panel did not err when it found that "prior bad acts" evidence was offered for a proper purpose...

After the ADB ruled, the now 83-year-old Hertzog told the Detroit News that the clients who had testified against him made up the stories. He cited his age and lack of sexual vigor as evidence that the allegations were absurd. "It all occurred when I wanted to get paid for my services," he said. "I don't like it, but I have no way to do anything about it," Hertzog said. "I'm certainly not going to go to the Supreme Court, to have them review it."

The case is Grievance Administrator v. Murdoch Hertzog, 06-76-JC; 06-77-GA (Michigan ADB, Nov. 23, 2009).

JAMES J. GROGAN, DACC, Illinois ARDC