No. 408, 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. 408, Disciplinary Docket
No. 3 - Supreme Court
No. 36 DB 1997 - 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
On December 15, 1998, Petitioner, [ ], filed a Petition for Reinstatement.
Petitioner filed an Amended Petition for Reinstatement on January 19, 1999. Petitioner
was suspended for a period of three months pursuant to the Supreme Court Order of May
21, 1998. Although Petitioner's suspension was for a period of less than one year, he
was required to file a Petition for Reinstatement pursuant to Rule 218(f)(2), Pa.R.D.E.,
because Petitioner had additional formal charges pending against him at No. 93 DB 1998.
The instant matter was referred to Hearing Committee [ ] comprised of Chair [ ], Esquire,
and Members [ ], Esquire, and [ ], Esquire. The reinstatement hearing was held on
February 24, 1999. Petitioner appeared pro se. Office of Disciplinary Counsel was
represented by [ ], Esquire.
On March 3, 1999, the Hearing Committee filed its Report and
recommended that the Petition for Reinstatement be granted. No Briefs on Exception
were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting of
March 10, 1999.
II.
FINDINGS OF FACT
The Board makes the following findings of fact:
1.
Petitioner was born in 1949 and was admitted to practice law in the
Commonwealth of Pennsylvania in 1983. His current home address is [ ]. His current
business address is [ ].
2.
By Supreme Court Order dated May 21, 1998, Petitioner was
suspended from the practice of law for a period of three months, effective June 20, 1998.
3.
Petitioner's suspension resulted from his failure to take any action in
furtherance of a client's PCRA Petition, thereby violating Rules of Professional Conduct
1.3, 1.4(a), and 8.4(d).
4.
Petitioner has an extensive record of discipline, which was
considered in the determination of the three month suspension. Petitioner received four
Informal Admonitions in 1994 and three Private Reprimands in 1996.
5.
Pursuant to Rule 217(a), Pa.R.D.E., Petitioner was required to send
notices to non-litigation clients informing them of his suspension. Petitioner did not send
any notices.
6.
On June 16, 1998, Office of Disciplinary Counsel received a
complaint from [A] involving, among other things, Petitioner's failure to notify [A] that he
had been suspended from the practice of law.
That complaint is the subject of an
ongoing investigation.
7.
On July 2, 1998, Petitioner filed with the Disciplinary Board his
Statement of Compliance pursuant to Rules 217(e), Pa.R.D.E., including providing proof
of notices sent to litigation clients pursuant to Rule 217(b), Pa.R.D.E.
8.
The three month term of suspension imposed by the Supreme Court
was to have expired on September 21, 1998, but the Office of Disciplinary Counsel filed a
Petition for Discipline at No. 93 DB 1998 on September 1, 1998. Pursuant to Rule
218(f)(2), Pa.R.D.E., Petitioner was required to petition for reinstatement and remains
under suspension.
9.
The aforementioned Petition for Discipline filed at No. 93 DB 1998
consists of charges of misconduct involving three clients. The hearing on that Petition
was held on November 18, 1998 before Hearing Committee [ ].
This is the same
Committee that heard the instant Petition for Reinstatement.
10.
Petitioner stipulated to the facts of the misconduct and stipulated that
he violated Rules of Professional Conduct 1.3, 1.4(a), 1.4(b), 1.16(d), 3.2, and 8.4(d).
Petitioner's misconduct in this matter is substantially similar to the misconduct for which
he was suspended in 1998 and for which he received private discipline in 1994 and 1996.
11.
The Hearing Committee in the matter of No. 93 DB 1998
recommended, contingent upon Petitioner's reinstatement from his suspension imposed
at No. 36 DB 1997, that Petitioner be subjected to a two year suspension, stayed in its
entirety, and that he be placed on probation for a period of two years, subject to
conditions, including the appointment of a practice monitor.
12.
The Board adjudicated the matter at No. 93 DB 1998 at the meeting
of March 10, 1999.
13.
In a separate Report and Recommendation in the matter of No. 93
DB 1998, the Disciplinary Board is recommending that Petitioner be suspended from the
practice of law for a period of one (1) year and one (1) day, retroactive to May 21, 1998.
III.
CONCLUSIONS OF LAW
Petitioner's qualifications for reinstatement to the bar of Pennsylvania
pursuant to Rule 218(c)(3)(i) were not addressed by the Board, as the Board finds that
Petitioner's pending discipline matter at No. 93 DB 1998 precludes such an analysis at
this time.
IV.
DISCUSSION
Petitioner was suspended for a period of three months by Order of the
Supreme Court dated May 21, 1998. This suspension was imposed, in part, for his
violations of the Rules of Professional Conduct based on Petitioner's inaction on a PCRA
Petition to which he had been court-appointed, and in part on his extensive history of prior
discipline for substantially similar infractions of the Rules.
This case presents an unusual procedural posture. Ordinarily, Petitioner
would not be required to file a Petition for Reinstatement for a three month suspension;
however, Office of Disciplinary Counsel filed a Petition for Discipline at No. 93 DB 1998
against Petitioner in a separate matter shortly before the expiration of Petitioner's
suspension. Rule 218(f)(2), Pa.R.D.E., requires an attorney suspended for less than one
year and one day to file a petition for reinstatement if formal disciplinary proceedings are
pending against that attorney at the time the suspension expires.
The Petition for Discipline filed at No. 93 DB 1998 contains three charges
alleging that Petitioner failed to act with diligence and promptness in furtherance of
clients' matters, failed to inform clients of the status of their cases, and failed to protect his
clients' interests. These charges, in each of three cases, are virtually the same as the
violations found in the suspension matter and the violations found in Petitioner's private
discipline proceedings. The Board adjudicated this matter at the meeting of March 10,
1999 and recommended a suspension for a period of one year and one day, retroactive
to May 21, 1998. This recommendation is presently before the Court for review and final
determination.
The Board's consideration of a Petition for Reinstatement involves an
analysis of evidence to determine whether the petitioner demonstrated that he or she has
the moral qualifications, competence and learning in the law required for admission to
practice law in Pennsylvania.
Pa.R.D.E. 218(c)(3)(i).
In the instant reinstatement
proceeding, the Board is of the opinion that such an analysis cannot be undertaken as the
Board has recommended a suspension of one year and one day, retroactive to May 21,
1998, in the pending matter at No. 93 DB 1998. The existence of this other disciplinary
proceeding effectively moots Petitioner's ability to prove he is qualified to resume
practicing law. If the recommendation of a one (1) year and one (1) day suspension is
imposed by the Supreme Court in the disciplinary matter, Petitioner would be required to
file a Petition for Reinstatement pursuant to Rule 218(a), Pa.R.D.E. and demonstrate his
fitness in order to resume the practice of law. All questions concerning his qualifications,
competency and learning in the law would be addressed at such time. In light of this
pending disciplinary proceeding and the Board's recommendation it is not appropriate at
this time to consider Petitioner's qualifications for reinstatement. The Board recommends
that the Petition be denied.
The Board notes, pursuant to ?89.272(c) of the Disciplinary Board Rules
and Procedures, that where a Petition for Reinstatement is finally denied by Order of the
Court, the Board will not entertain a second Petition for Reinstatement until after the
expiration of at least one year from the time the immediately preceding Petition was finally
denied. In this particular case, if the Court denies the instant Petition for Reinstatement,
the earliest the Petitioner would be eligible to petition for reinstatement is one year from
the date of the final Order. If, however, the Court waives the requirements of ?89.272(c),
Petitioner would be eligible to petition for reinstatement immediately upon conclusion of
any further period of suspension.
This waiver is fair considering the length of time
Petitioner has been on suspension and the amount of time necessary to process a
Petition for Reinstatement.
V.
RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously
recommends that the Petition of [ ] for Reinstatement be denied as moot because of the
Petitioner's pending disciplinary matter at No. 93 DB 1998.
The Board further
recommends that the requirements of Disciplinary Board Rule ?89.272(c) be waived.
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: July 2, 1999
PER CURIAM:
AND NOW, this 20th day of July, 1999, upon consideration of the Report
and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania
dated July 2, 1999, the Petition for Reinstatement is denied, and the requirements of
Disciplinary Board Rule Section 89.272(c) are hereby waived.
Pursuant to Rule 218(e), 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.
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