BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner
v.
[ANONYMOUS],
Respondent
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No. 200, Disciplinary Docket
No. 3 - Supreme Court
Nos. 68 DB 96 and 22 DB 97
Disciplinary Board
Attorney Registration No. [ ]
([ ] County)
REPORT AND RECOMMENDATIONS OF
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES
OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary
Enforcement, The Disciplinary Board of the Supreme Court of Pennsylvania ("Board")
herewith submits its findings and recommendations to your Honorable Court with respect
to the above-captioned Petition for Discipline.
I.
HISTORY OF PROCEEDINGS
The Supreme Court of Pennsylvania's May 30, 1996 Order placed
Respondent, [ ], on temporary suspension and referred the matter to the Disciplinary
Board pursuant to Rule 214(f)(1), Pa.R.D.E. Respondent was temporarily suspended
based on his conviction in the Court of Common Pleas of [ ] County of the offenses of
criminal solicitation to possess a controlled substance and criminal attempt to possess a
controlled substance. A Petition for Discipline (at No. 68 DB 96) was filed by Office of
Disciplinary Counsel against Respondent on July 15, 1996.
The Petition charged
Respondent with violations of RPC 8.4(b) and Pa.R.D.E. 203(b)(1), based on his criminal
conviction.
A second Petition for Discipline (at No. 22 DB 97) was filed by Petitioner
against Respondent on February 21, 1997.
This Petition charged Respondent with
violations of RPC 1.3, 1.5(a), 1.5(b), 1.8(h), 1.15(a), 1.15(b), 1.15(c), 1.16(d), 8.4(c), and
8.4(d) in connection with his representation of three separate clients and violation of RPC
8.4(b) for unlawful drug use which occurred while Respondent was on probation for the
above mentioned criminal conviction.
These Petitions were consolidated for the
disciplinary hearing. Respondent filed an Answer to No. 22 DB 97 on March 26, 1997
and filed an Answer to No 68 DB 96 on April 14, 1997.
Prior to the hearing, Petitioner and Respondent agreed to a Stipulation and
Respondent withdrew his Answers of March 26, 1997 and April 10, 1997.
The disciplinary hearing was held before Hearing Committee [ ] comprised
of Chair [ ], Esquire, and Members [ ], Esquire and [ ], Esquire.
Respondent was
represented by [ ], Esquire. Petitioner was represented by [ ], Esquire.
The Committee filed a Report on October 16, 1997 and recommended a
five year suspension retroactive to May 30, 1996, the date of Respondent's temporary
suspension.
Respondent filed a Brief on Exceptions on November 4, 1997 and
requested Oral Argument. Petitioner filed a Brief Opposing Exceptions on November 21,
1997.
Oral Argument was held on January 8, 1998 before a three member panel
of the Disciplinary Board chaired by Member Thomas J. Elliott, Esquire and consisted of
Board Members Mark C. Schultz, Esquire and Charles J. Cunningham, III, Esquire.
This matter was adjudicated by the Disciplinary Board at the meeting on
January 16, 1998.
II.
FINDINGS OF FACT
The Board makes the following findings of fact:
1.
Petitioner, whose principal office is now located at Suite 3710, One
Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the
Pennsylvania Rules of Disciplinary Enforcement (hereafter Pa.R.D.E.), with the power
and the duty to investigate all matters involving alleged misconduct of an attorney
admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all
disciplinary proceedings brought in accordance with the various provisions of the
aforesaid Rules.
2.
Respondent was born on May 19, 1952.
He was admitted to
practice law in the Commonwealth of Pennsylvania on October 11, 1977. He currently
resides in [ ] County.
3.
On March 29, 1995, Respondent was arrested and charged with
solicitation to possess a controlled substance (cocaine) and criminal attempt to possess a
controlled substance (cocaine), in violation of 18 Pa.C.S.A. §901-902 and 35 P.S. §780113(a)(16).
4.
On September 11, 1995, Respondent entered a plea of guilty to
these charges. The factual basis of the guilty plea is as follows:
o.
o.
This client was operating as a police informant
throughout his dealings with Respondent;
o.
On March 29, 1995, the client delivered to Respondent
a packet containing a substance believed by
Respondent to be $200 worth of cocaine. However, it
was not cocaine, but a non-controlled substance
supplied to the client by the police;
o.
5.
On March 16, 1995, Respondent, in his law office,
asked a client to obtain, for Respondent's use, 1/8
ounce of cocaine. Respondent provided the client with
the agreed purchase price of $200;
This delivery was made in Respondent's vehicle.
Shortly after the delivery was completed, Respondent
was stopped by police. During the ensuing search the
packet of fake cocaine was found under the driver's
seat, which Respondent had been occupying.
Respondent was arrested.
On September 11, 1995, Judge [A] sentenced Respondent to Proba-
tion Without Verdict for twelve months.
The probationary conditions included a
requirement the Respondent submit to random drug testing, and that he refrain from the
use of illegal drugs.
6.
On February 8, 1996, a urine sample Respondent provided to his
probation officers tested positive for cocaine.
7.
On March 4, 1996, Respondent appeared at a Revocation of
Probation Hearing, at which time Judge [A] found and directed the following:
o.
o.
That his probation without verdict was revoked;
o.
That a judgment of guilty be entered in connection with
the charges of solicitation to possess a controlled
substance and criminal attempt to possess a controlled
substance; and
o.
8.
That Respondent had used cocaine in violation of the
terms and conditions of his probation;
That Respondent be sentenced to a term of 45 days to
1 year of incarceration.
Respondent appealed to the Superior Court. By Opinion filed March
10, 1997 his appeal was denied and judgment of sentence affirmed.
9.
Following a hearing on May 2, 1997, Judge [A] directed that
Respondent's sentence be changed from jail to house arrest.
10.
Respondent was placed on temporary suspension by Order of the
Supreme Court dated May 30, 1996.
11.
Prior to and during the time frame of the above criminal misconduct,
but not after his temporary suspension, Respondent continued to represent clients.
[B] MATTER
12.
On March 1, 1993, Respondent entered into a written fee agreement
with [B] in connection with [B's] domestic relations case. The agreement provided for
payment of a $3,500 retainer. There was nothing in the agreement indicating the retainer
was nonrefundable.
There was no mention of charges or fees for paralegal or
administrative work. The agreement provided that [B] would be sent regular monthly
billings.
13.
On March 17, 1993, Respondent deposited $17,575 into his Trust
Account at [C] Bank. The deposit included a $17,000 check he received from his client.
14.
On March 19, 1993, Respondent claimed $3,500 of these funds as
fees and withdrew this amount for his personal use.
15.
Between March 19 and April 28, 1993, Respondent made authorized
disbursement of his client's funds. The balance of the funds which should have remained
in the Trust Account was approximately $4,884; but by April 1993, the account had a
negative balance of $16.83.
16.
In July 1993, [B] advised Respondent that his services were no
longer required as he reconciled with his wife. [B] requested a final bill and accounting
and a return of the balance of his money.
17.
Over the ensuing months, [B] made numerous additional requests
for a final accounting and return of his funds.
18.
Respondent failed to submit a final bill until February 1994. The
amount billed totaled $8,815. This bill included fees for paralegal and administrative work
which had never been made part of the written fee agreement. In addition, the bill
indicated that [B's] trust funds had been disbursed in the amount of $8,220 (for costs and
other purposes) for a total of $17,035. [B's] $17,000 had been totally depleted and he
allegedly owed $35 to Respondent.
19.
On or about September 6, 1994, Respondent received a DB-7 Letter
of Inquiry and was advised that [B] filed a complaint with the Office of Disciplinary
Counsel.
20.
Between September 6 and September 13, 1994, an associate from
Respondent's office, acting at Respondent's direction, contacted [B] and told him that
Respondent would be willing to negotiate a financial settlement.
21.
Respondent's office sent [B] a general release for him to sign, in
exchange for which Respondent would send [B] $2,000. The release requested [B] not to
communicate any further with the Disciplinary Board. A letter to the Board, prepared for
[B's] signature, was included and stated that [B] believed his complaint was a mistake.
22.
By letter dated September 23, 1994, Respondent answered the DB-
7 Letter of Inquiry and stated that he had no knowledge of any problems with [B's] funds.
23.
On September 28, 1994, [B] mailed to Respondent the signed
release and letter to the Board.
24.
Respondent mailed the documents to the Office of Disciplinary
Counsel and requested the matter be closed.
By letter dated October 4, 1994,
Respondent was advised the investigation would not be closed.
25.
Respondent continued to write to [B] to request that he write to the
Board and clear up any misunderstandings.
[D] MATTER
26.
On July 3, 1995, Respondent agreed to represent [] and [ ] [D] in
connection with a District Justice judgment obtained against [E], which had been
appealed to the Court of Common Pleas.
27.
Respondent told his clients that he would require $2,500 as a
retainer and his rate was $100 per hour. Respondent failed to provide his clients with a
written statement setting forth the basis or rate of his fees until October 3, 1995.
28.
On July 5, 1995, Mrs. [D] paid Respondent $600, which he did not
deposit into his escrow account, but treated as his own.
29.
On July 20, 1995 a second installment of $600 was paid to
Respondent. He did not deposit these funds into his escrow account.
30.
On August 18, 1995, [D] requested a statement as to fees charged
to date and a written fee agreement.
31.
On August 21, 1995, [D] paid $650 to Respondent. These funds
were not deposited into an escrow account. Again, [D] asked for a billing statement.
32.
The [D] paid the final installment of $650 and sent a letter on
September 27, 1995 requesting a billing statement and fee agreement.
33.
On or about October 3, 1995, Respondent sent the [D] a proposed
fee agreement that stated the $2,500 was nonrefundable and his rate was $125 per hour.
34.
The [D] refused to execute this agreement because the terms were
different than what they initially agreed to in July 1995.
35.
By letter dated November 8, 1995, the [D] notified Respondent that
he was discharged and requested an accounting and refund of all unearned fees within
one week.
36.
By letter dated November 13, 1995, Respondent acknowledged the
[D's] request and enclosed an accounting indicating his hourly rate was $150.
The
accounting provided for a refund to the [D] of $365.
[F] MATTER
37.
In early September 1994, Respondent agreed to represent [F] in a
divorce. She executed a written fee agreement wherein Respondent's hourly rate was
set at $125 with a nonrefundable retainer of $1,250.
38.
Although Respondent took initial steps to further the matter, he took
no action between December 1994 and August 1995.
39.
After August 1, 1995, the case was settled through negotiation by
the parties and a final divorce decree entered on September 11, 1995.
40.
By letter of September 15, 1995, Respondent enclosed a copy of the
decree, an accounting and a check for $7,319.10.
According to this accounting, the
check represented [F's] settlement proceeds of $12,000 less $4,680.90 to Respondent.
This disbursement to Respondent was for fees of $4,158.50 and costs of $522.40, in
addition to the $1,250 retainer.
41.
Respondent withheld $4,680.90 from [F's] settlement proceeds
without authority to do so. His client was unaware of the amount of Respondent's fees
and had advised him not to deduct fees from her settlement proceeds until she was able
to review and approve a final bill.
42.
[F] attempted to resolve her dispute with Respondent through the [ ]
Fee Dispute Committee, however, the Committee declined consideration of her complaint
as Respondent had a history of refusing to cooperate with the Committee.
43.
Respondent has no prior history of discipline.
44.
From October 1977 through November 1985, Respondent practiced
law in association with his father, who is currently a Senior Judge in the Court of Common
Pleas of [ ] County.
45.
From November 1985 until 1990 Respondent practiced law in a
partnership with two other attorneys.
46.
In the early 1990's Respondent practiced law with his cousin.
47.
Respondent served as a part-time assistant public defender when he
first was admitted to practice.
48.
During the years 1994, 1995 and 1996 Respondent was a sole
practitioner, although he had a young attorney as an associate.
49.
Respondent had a general law practice, with an emphasis on
criminal defense and family law work.
50.
Respondent was active in various community and civic organizations
in [ ] County, as well as various county bar activities.
51.
In the early 1990's, Respondent began using cocaine and alcohol.
His use grew progressively more severe. (N.T. 154)
During this time frame,
Respondent's wife asked for a divorce.
52.
During 1993 through 1995, Respondent increased his use of drugs
and alcohol until in 1995 he was using these substances on a daily basis. At the height of
Respondent's addiction he was using approximately 1 or 2 grams of cocaine and drinking
one-half of a fifth of vodka on a daily basis. (N.T. 155)
53.
Respondent testified that he did not seek help for his addiction
because he did not realize how bad it was. (N.T. 156)
54.
Respondent testified that after his arrest in 1995 he went into
rehabilitation at [G] facility. He completed a 28 day in-patient program and became
involved with after care groups such as AA. (N.T. 157)
55.
Respondent testified that his marital problems increased during this
time, and he felt extreme pressure in attempting to deal with these issues and also
support his children and focus on rehabilitation. He began using cocaine again with
regularity in November 1995 until early February 1996. (N.T. 158, 159)
56.
In February 1996, Respondent tested positive for cocaine and was
charged with violation of his probation due to drug use.
57.
On March 6, 1996, a revocation hearing was held. At the hearing
Respondent testified that he had not used cocaine in February 1996.
Respondent
testified at the disciplinary hearing that he misled the court at the revocation hearing
because he was still in denial and could not admit his addiction. (N.T. 164-165)
58.
Since February 1996, Respondent has been in outpatient
rehabilitation on a regular basis and has learned to control his addiction. (N.T. 161-165)
59.
Respondent attended an outpatient program at [H] Drug and Alcohol
Services for six weeks after February 1996. (N.T. 162)
60.
During that time period, Respondent met with his AA sponsor, [I], on
a regular basis and went to AA meetings 5 or 6 times per week. (N.T. 162)
61.
[J] testified as an expert witness for Respondent. [J] is a certified
drug and alcohol counselor by the Pennsylvania Chemical Abuse Certification Board and
works for [H] Drug and Alcohol Services. (N.T. 65)
62.
[J] has been employed in the field of Chemical Dependency
Counseling for 19 years. (N.T. 67)
63.
[J] began treating Respondent from on or about March 28, 1996 on
an individual, weekly basis. [J] testified that in March 1997, he began seeing Respondent
on a bi-weekly basis. (N.T. 71, 72)
64.
[J] confirmed that Respondent was tested for drug and alcohol use
with random urine samples and had been tested a total of 56 times in the last year
without any showing of drug or alcohol use. (N.T. 72, 73)
65.
[J] testified that Respondent has a substance addiction and
confirmed that Respondent has performed well in his treatment and participated in the
required programs. (N.T. 74, 75)
66.
[J] testified that Respondent's prognosis for recovery is good,
provided he maintains the recommended program of continuance with AA and co-
dependency group counseling. (N.T. 77)
67.
[J] testified that it was his opinion that Respondent's addiction "could
very well have affected his thoughts and his behavior at that particular time." (N.T. 83-84)
68.
Respondent testified that the programs he has been in have taught
him to be honest with himself and have helped him remain sober. Respondent intends to
continue with his recovery programs. (N.T. 165-166)
69.
Respondent expressed remorse for his actions and fully admitted his
mistakes. (N.T. 171, 172)
70.
Witnesses testified on behalf of Respondent as to the positive
changes they have seen in him since he stopped using drugs and alcohol, and the
concerted efforts he has made to adhere to his treatment program. These witnesses
included Respondent's parents, his AA sponsor, fellow attorneys and community
members.
III.
CONCLUSIONS OF LAW
By his conduct as set forth above Respondent violated the following
Pennsylvania Rule of Disciplinary Enforcement:
1.
Pa.R.D.E. 203(b)(1) - Conviction of a serious crime
constitutes the basis for independent discipline.
By his conduct as set forth above Respondent violated the following Rules
of Professional Conduct:
1.
RPC 1.3 - A lawyer shall act with reasonable diligence and
promptness in representing a client.
2.
RPC 1.5(a) - A lawyer shall not enter into an agreement for,
charge, or collect an illegal or clearly excessive fee.
3.
RPC 1.5(b) - When the lawyer has not regularly represented
the client, the basis or rate of the fee shall be communicated
to the client, in writing, before or within a reasonable time after
commencing the representation.
4.
RPC 1.8(h) - A lawyer shall not settle a claim, for liability to a
client, with an unrepresented client or former client without
first advising that person in writing that independent
representation is appropriate in connection therewith.
5.
RPC 1.15(a) - A lawyer shall hold property of clients or third
persons that is in a lawyer's possession in connection with a
representation separate from the lawyer's own property.
Funds shall be kept in a separate account maintained in the
state where the lawyer's office is situated, or elsewhere with
the consent of the client or third person. Other property shall
be identified as such and appropriately safeguarded.
6.
RPC 1.15(b) - Except as stated in this Rule or otherwise
permitted by law or by agreement with the client a lawyer shall
promptly notify the client or third person. Except as stated in
this Rule or otherwise permitted by law or by agreement with
the client, a lawyer shall promptly deliver to the client or third
person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or
third person, shall promptly render a full accounting regarding
such property.
7.
RPC 1.15(c) - When in the course of representation a lawyer
is in possession of property in which both the lawyer and
another person claim interest, the property shall be kept
separate by the lawyer until there is an accounting and
severance of their interests. If a dispute arises concerning
their respective interests, the portion in dispute shall be kept
separate by the lawyer until the dispute is resolved.
8.
9.
RPC 8.4(b) - It is professional misconduct for a lawyer to
commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other
respects.
10.
RPC 8.4(c) - It is professional misconduct for a lawyer to
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
11.
IV.
RPC 1.16(d) - Upon termination of representation, a lawyer
shall refund any advance payment of fee that has not been
earned.
RPC 8.4(d) - It is professional misconduct for a lawyer to
engage in conduct that is prejudicial to the administration of
justice.
DISCUSSION
Since the Respondent has admitted his misconduct, the only determination
by this Board is the discipline to be imposed. Respondent's admitted violations of the
Rules of Professional Conduct include a criminal conviction for the solicitation to possess
cocaine and criminal attempt to possess cocaine (a misdemeanor offense), his violation
of probation for that conviction, commingling and conversion of client funds,
misrepresentation, charging excessive fees and failure to return unearned retainer funds.
It was undisputed that prior to these events Respondent was a well regarded member of
the legal community with no prior discipline.
To mitigate the discipline imposed by this Board the Respondent presented,
inter alia, expert testimony from a certified addictions counselor, an academic/clinical
discipline which this Board has previously acknowledged as an appropriate source of
th
expert testimony In re Anonymous No. 3 DB 90, 14 Pa. D&C 4
470 (1992).
The
following significant elements of that testimony were contained in the Report of the
Hearing Committee:
o.
Respondent underwent a 6 week intensive outpatient
program at [H] Drug and Alcohol Services during which this
expert witness was his treatment therapist and had extensive
personal contact with Respondent;
o.
Respondent was addicted to cocaine and alcohol secondary
to the cocaine and he also suffered from a co-dependency;
o.
Respondent’s alcohol and drug addiction peaked in 1995
when he daily consumed ½ quart of vodka and 1-2 grams of
cocaine;
o.
Respondent's cocaine and alcohol addictions existed during
the time period of Respondent's misconduct and that
misconduct was a result of the addictions;
o.
Respondent tested clean in more than 50 consecutive
urinalysis tests for drugs and alcohol;
o.
Respondent was personally and extensively seen by the
addictions counselor on a bi-weekly basis;
o.
Respondent's prognosis is good as long as he stays in
treatment.
Based on these findings the Hearing Committee concluded that
"Respondent's
alcohol
and
cocaine
addiction
was
a
factor
in
causing
his
misconduct...Respondent has met the Braun test and mitigation is an appropriate
consideration." This Board's de novo review agrees with that conclusion.
In Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894
(1989) the Supreme Court held that in order for a psychiatric condition to be considered in
a disciplinary proceeding the existence of a causal connection between the condition and
the misconduct must be established by clear and convincing evidence. Satisfying the
standards of Braun can not be reduced to some mere incantation of certain words by the
expert. At the core of the expert testimony Respondent must establish by clear and
convincing evidence the causal connection between Respondent's misconduct and the
addiction or addictions. In re Anonymous No. 104 DB 95 at 14 (1997)
This Board continues to examine closely the expert testimony required to
meet the Braun standard and has not hesitated to reject that testimony when it does not
establish the critical causal link between misconduct and disorder. See In re Anonymous
No. 36 DB 95, (1997); In re Anonymous No. 66 DB 96, (1998); and In re Anonymous No.
th
25 DB 89 & 71 DB 89, 12 Pa. D&C 4 80 (1991). These opinions offer counsel excellent
guidance as to the specificity required of testimony to satisfy Braun and have that
testimony mitigate Respondent's discipline.
The following additional mitigation evidence is found in this record:
o.
The Hearing Committee found the Respondent credible;
o.
The Hearing Committee found the Respondent remorseful;
o.
Respondent continued bi-weekly counseling after concluding
his intensive outpatient treatment;
o.
Respondent continued to actively participate in recovery
programs
offered
by
Alcoholics
Anonymous
and
co-
dependency meetings as well as independent counseling and
church activities;
o.
Respondent presented character testimony to establish his
good behavior before and after his violations of The Rules of
Professional Conduct;
o.
Respondent presented testimony from both attorneys and
other members of the community which strongly supported
Respondent's return to the practice of law.
Absent the clear and convincing expert testimony to establish the causal
link between disorder and specific conduct, the impact of additional mitigation evidence
would be substantially diminished. Where, as in this case, the Respondent establishes
that causal connection, and the record also contains the type of non-expert additional
testimony described above, Respondent's position on mitigation is enhanced. None of
this testimony excuses Respondent's conduct, but, viewed in its totality, it demonstrates
his addictions significantly caused his misconduct, and establishes additional support to
mitigate his discipline to a five year suspension.
V.
RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania recommends
that the Respondent, [ ], be suspended from the practice of law in the Commonwealth of
Pennsylvania for a period of five (5) years retroactive to May 30, 1996.
It is further recommended that the expenses incurred in the investigation
and prosecution of this matter are to be paid by the Respondent.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:____________________________
Thomas J. Elliott, Member
Date: July 7, 1998
Board Member Carson did not participate in the January 16, 1998 adjudication.
PER CURIAM:
AND NOW, this 3rd day of September, 1998, upon consideration of the
Report and Recommendations of the Disciplinary Board dated July 7, 1998, it is hereby
ORDERED, that [Respondent] be and he is SUSPENDED from the Bar of
this Commonwealth for a period of five (5) years retroactive to May 30, 1996, 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.
