No. 210, Disciplinary Docket No. 3
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BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
In the Matter of
[ANONYMOUS]
PETITION FOR REINSTATEMENT
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No. 210, Disciplinary Docket
No. 3 - Supreme Court
No. 95 DB 1996 - 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 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement,
The Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and
recommendations to your Honorable Court with respect to the above-captioned Petition for
Reinstatement.
I.
HISTORY OF PROCEEDINGS
Petitioner, [ ], filed a Petition for Reinstatement on May 14, 1998. Petitioner was
suspended from the practice of law for eighteen months retroactive to July 26, 1996, by Order of the
Supreme Court dated March 25, 1998. Petitioner was suspended as a result of his conviction of one
count of accessory after the fact to mail fraud, in violation of 18 U.S.C. § 3.
A reinstatement hearing was held on July 24, 1998 before Hearing Committee [ ]
comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was
represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.
The Committee filed a Report on August 17, 1998 and recommended that the
Petition for Reinstatement be granted. No Briefs on Exceptions were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting of October 5,
1998.
II.
FINDINGS OF FACT
The Board makes the following findings of fact:
1.
Petitioner was born on May 18, 1953 and was admitted to practice law in
Pennsylvania on May 5, 1981. He resides at
[].
2.
A 60 count indictment was filed against Petitioner and others in the United
States District Court for the [ ] District of New York. Petitioner waived the indictment against him
and a felony information was filed against him; he pleaded guilty to one count of the felony
information (accessory after the fact in violation of the federal mail fraud statute 18 U.S.C. § 3). On
July 26, 1996, Petitioner was placed on temporary suspension from the practice of law by Order of
the Supreme Court pursuant to Rule 214(d), Pa.R.D.E.
3.
As a result of his guilty plea Petitioner was sentenced to a period of two
months home confinement, probation of one year, and a $3,000 fine.
4.
The matter was referred to the Disciplinary Board pursuant to Rule
214(f)(1), Pa.R.D.E.
5.
Disciplinary proceedings commenced against Petitioner and he was
eventually suspended for eighteen months by the Supreme Court by Order of March 25, 1998. This
suspension was made retroactive to the temporary suspension on July 26, 1996.
6.
Petitioner filed for reinstatement on May 14, 1998.
7.
The events leading to Petitioner's conviction are as follows:
a.
Petitioner represented a client in an administrative matter before the
Environmental Hearing Board regarding the shutdown of a landfill in
[ ] Pennsylvania.
b.
Central to the administration proceedings was whether certain
previously deposited municipal waste was removed and replaced
with construction and demolition waste. Petitioner hired an expert
whose report concluded the offending waste was not removed. The
conclusions of the expert report conflicted with his client's story, and
while be began to suspect his client had not removed the waste,
Petitioner submitted the report to the Department of Environmental
Protection ("DEP") without reconciling it with this client's account.
c.
While preparing for a deposition Petitioner questioned his client
about the inconsistencies between his story and the expert's report.
For the first time his client disclosed that he really had to get the
landfill opened because the true party having a financial interest in
the landfill was the [A] organized crime family of New York. (N.T.
62)
d.
Petitioner's client lied during his deposition regarding the identity of
the landfill ownership. At a deposition break Petitioner told his
client to correct the record, but his client refused to do so because of
his stated fear of retaliation from the organized crime family.
e.
f.
8.
After the deposition Petitioner told his client he thought the case was
a loser, his perjury would make it worse, and he should get a new
lawyer.
After Petitioner told his client he intended to withdraw from the
case, his client told him for the first time that he submitted falsified
documents to DEP to make it appear that the offending waste was
removed from the landfill when in fact it was not.
During the period of Petitioner's suspension, Petitioner attended 39 hours of CLE
and is in compliance with the requirements of the current schedule required for reinstatement.
9.
In addition to attending CLE courses, Petitioner engaged in legal research and
writing with Attorneys [B], [C], [D], [E], and [F].
10.
Petitioner testified that he regularly read legal newspapers and journals. (N.T. 20)
11.
During his period of suspension, Petitioner testified that he made 15-20 visits of
varying lengths to the courthouse during which he observed motions practice and trials. (N.T. 1516)
12.
During his suspension, Petitioner helped to found a youth hockey organization
comprised of 160 youths. Petitioner testified that he spends between 10-15 hours a week involved
in this community service.
13.
Petitioner is also involved in the [ ] School District [ ] program for exceptional
children.
14.
Petitioner offered into evidence 17 character reference letters from lawyers in the [ ]
area. Each of these individuals supported Petitioner's reinstatement.
15.
Petitioner presented character testimony from five attorneys, each of whom testified
that Petitioner is a man of integrity who has maintained a high level of legal competence and skill.
16.
Petitioner testified that if reinstated he intends to be a sole practitioner with
an emphasis on personal injury and contract law. (N.T. 22, 23)
17.
Petitioner testified that he would establish procedures to follow if faced with
an ethical dilemma in the future. These include calling other attorneys or the Ethics Hotline.
18.
III.
Petitioner has no history of discipline prior to the instant matter.
CONCLUSIONS OF LAW
Petitioner has demonstrated, by clear and convincing evidence, that he possesses the
moral qualifications, competency, and learning in the law necessary to practice law in Pennsylvania.
Petitioner's resumption of the practice of law will not be detrimental to the integrity
of the bar or subversive of the interests of the public.
IV.
DISCUSSION
The sole question to be determined in this matter is whether Petitioner's request for
reinstatement to the bar of the Supreme Court of Pennsylvania should be granted. In order for
Petitioner to gain reinstatement he must prove, by clear and convincing evidence, that he has the
moral qualifications, competency and learning in the law required for admission to practice law,
and that the resumption of the practice of law will neither be detrimental to the integrity of the bar
or administration of justice, nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(i).
In determining whether Petitioner clearly demonstrated his present fitness to
practice law, the Board considered the nature of Petitioner's misconduct, his present competence
and legal abilities, his character, rehabilitation, and the degree of remorse expressed. Philadelphia
News, Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).
Petitioner pleaded guilty to one count (accessory after the fact to mail fraud) of a
criminal information in the United States District Court for the [ ] District of New York. The
relevant facts are set forth herein at pp. 3-4 and will not be repeated. It is important to remember
that those facts are significant only to describe the conduct upon which the federal criminal charges
were brought against Petitioner; that conduct itself was not the basis for the discipline from which
Petitioner seeks reinstatement. The sole basis for Petitioner's discipline is the fact that he was
convicted of a serious crime. Rule 214(f)(1), Pa.R.D.E. The nature of the conduct to which the
plea was entered is one of the relevant factors considered in reinstatement.
Petitioner's license to practice law was suspended for eighteen months retroactive to
July 26, 1996, the date of his temporary suspension. Petitioner has been suspended for more than
two years at the present time.
He has fulfilled his CLE requirements.
During Petitioner's
suspension he performed legal writing and research for various attorneys in the [ ] area. He also
read legal periodicals and attended trials and motions court. Petitioner remained involved in the
community, helping to form a youth hockey league and devoting time to the [ ] School District
[ ] program.
Character witnesses who have known Petitioner for many years testified to
Petitioner's excellent legal abilities and his high moral integrity. These witnesses wholeheartedly
endorsed Petitioner's reinstatement to the practice of law.
Petitioner demonstrated an understanding of the steps he needs to take if he
perceives himself caught in an ethical dilemma in the future. He understands his responsibilities
and his role in the attorney-client relationship.
Petitioner engaged in criminal conduct for which he was disciplined by the Supreme
Court through an eighteen month suspension of his license to practice law. Petitioner served this
suspension and demonstrated by clear and convincing evidence that he has the requisite moral
character, competency and learning in the law necessary for reinstatement. It is equally clear that
Petitioner's resumption of the practice of law will not be detrimental to the profession or the public
interest.
The Board recommends that the Petition for Reinstatement be granted.
V.
RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously
recommends that Petitioner, [ ], be reinstated to the practice of law.
The Board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., Petitioner
be directed to pay the necessary expenses incurred in the investigation and processing of the
Petition for Reinstatement.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:____________________________
Thomas J. Elliott, Member
Date: January 11, 1999
Board Vice-Chair Caroselli did not participate in the consideration and disposition of this matter.
Board Member Schultz did not participate in the October 5, 1998 adjudication.
PER CURIAM:
AND NOW, this 4th day of March, 1999, upon consideration of the Report and
Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated January
11, 1999, the Petition for Reinstatement is granted.
Pursuant to Rule 218(a), Pa.R.D.E. petitioner is directed to pay the expenses
incurred by the Board in the investigation and processing of the Petition for Reinstatement.
Mr. Justice Cappy did not participate in this matter.
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