BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL
Petitioner
v.
No. 70 DB 2001
Attorney Registration No. 43771
STEVEN CLARK FORMAN
Respondent
(Philadelphia)
REPORT AND RECOMMENDATION OF THE
DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND
JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
MORRIS, J., Member of the Board.
Pursuant to Rule 208(d)(2)(iii) 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
Discipline.
I. INTRODUCTION
This matter involves an attorney who has practiced law for 12 years while on inactive
status. Respondent claims that he was unaware of his status since he never received any notice.
It is undisputed that this circumstance was caused by Respondent’s failure to notify authorities
that he had moved his office.
The Hearing Panel recommended a Public Censure. Office of Disciplinary Counsel filed
exceptions urging a suspension of at least six months. Respondent countered these exceptions
with a request that the recommendation of the Hearing Panel be adopted.
The violations are admitted and the facts – other than the continuing mystery of what was
going on in Respondent’s mind – are not in dispute.
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II. HISTORY OF PROCEEDINGS
The Petition for Discipline was filed on May 21, 2001. The matter was referred to
Hearing Committee 1.02 which held hearings and filed its Report recommending Public Censure
on March 18, 2002.
Exceptions were filed by ODC which were opposed by Respondent. Oral argument on
the Exceptions was held on June 5, 2002 before Board Members Morris, Watkins, and Curran.
The matter was adjudicated by the Board on June 12, 2002.
III. FINDINGS OF FACT
1.
Petitioner, whose principal office is situated 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 duty to investigate all
matters involving alleged misconduct of any attorney admitted to practice law in the
Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in
accordance with the various provisions of these Rules. (Ans. to Petn. for Disc. ¶ 1.)
2.
Respondent, Steven Clark Forman, was born in 1960 and was admitted to practice
law in the Commonwealth of Pennsylvania on or about November 1, 1985. Respondent is
presently on inactive status. His office is located at 1873 Route 70 E, Suite 110B, Cherry Hill,
New Jersey. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of
the Supreme Court. (Ans. to Petn. for Disc. ¶ 2.)
3.
At the time of Respondent’s admission to the Pennsylvania bar and continuing
through 1987, his residential address was 2 Burkwood Court, Pleasantville, New Jersey, and his
office address was 1300 Atlantic Avenue, Atlantic City, New Jersey. (Ans. to Petn. for Disc. ¶
3.)
4.
Respondent did not notify the Pennsylvania Administrative Office of Courts or
the Disciplinary Board of any changes in his address after 1987. (Ans. to Petn. for Disc. ¶ 4.)
5.
Commencing in 1988, and for each year thereafter through 2000, Respondent
failed to file annual; attorney registration statements and to pay his annual attorney registration
fees, as required by Pa. R.D.E. 219(a) and (d)(1). (Ans. to Petn. for Disc. ¶ 5.)
6.
By Order of the Supreme Court of Pennsylvania dated December 29, 1988,
Respondent was transferred to inactive status. (Ans. to Petn. for Disc. ¶ 6.)
7.
By certified letter dated January 12, 1989, mailed to Respondent’s initial
residential attorney registration address but returned marked “unclaimed” or “unknown,” the
Secretary of the Disciplinary Board attempted to give actual notice to Respondent of the entry of
the Order. (Ans. to Petn. for Disc. ¶ 7.)
8.
Thereafter, the Disciplinary Board did not furnish Respondent with a current
attorney registration identification card each year. (Ans. to Petn. for Disc. ¶ 8.)
9.
After his transfer to inactive status, Respondent continued to practice law in
Pennsylvania. (Ans. to Petn. for Disc. ¶ 9.)
10.
After Pennsylvania instituted Continuing Legal Education requirements in 1993,
Respondent complied for three years. He completed half of the requirements in 1996, and
thereafter failed to attend any programs. (Stip. ¶¶ 14, 16, 17.)
11.
Also, from 1988 through February of 2000, Respondent failed to file his annual
statement as required by Pa. R.D.E. 219(d)(1) and failed to pay his annual fee as required by Pa.
R.D.E. 219(a). (Ans. to Petn. for Disc. ¶ 15.)
12.
Throughout the period when Respondent was on inactive status, he tried dozens
of jury trials in Pennsylvania, settled dozens more, and participated in hundreds of arbitration
hearings. (N.T. 87-89.)
13.
Respondent ceased practicing in Pennsylvania in February 2000 which was the
point at which he claims to have been first aware that he had been on inactive status for the past
12 years.
IV. CONCLUSIONS OF LAW
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Respondent has violated the following Rules of Professional Conduct (RPC) and Rules of
Disciplinary Enforcement (R.D.E.):
a.
RPC 5.5(b), which states that a lawyer shall not practice law in a
jurisdiction where to do so would be in violation of regulations of the
profession in that jurisdiction;
b.
R.D.E. 217(c), which states that a formerly admitted attorney shall
promptly notify, or cause to be notified, of . . . transfer to inactive status,
by registered or certified mail, return receipt requested:
(1)
all persons or their agents or guardians to whom a fiduciary
duty is or may be owed at any time after the . . . transfer to
inactive status, and
(2)
all other persons with whom the formerly admitted attorney
may at any time expect to have professional contacts under
circumstances where there is a reasonable probability that
they may infer that he . . . continues as an attorney in good
standing.
The responsibility of the formerly admitted attorney to provide the notice
required by this subdivision shall continue for as long as the formerly
admitted attorney is . . . on inactive status;
c.
R.D.E. 217(d), which states that orders imposing suspension, disbarment,
or transfer to inactive status shall be effective 30 days after entry. The
formerly admitted attorney, after entry of the disbarment, suspension, or
transfer to inactive status order, shall not accept any new retainer or
engage as attorney for another in any new case or legal matter of any
nature. However, during the period from the entry date of the order and its
effective date, the formerly admitted attorney may wind up and complete,
on behalf of any client, all matters which were pending on the entry date;
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d.
R.D.E. 219(a), which currently states, in relevant part, that every attorney
admitted to practice in any court of this Commonwealth shall pay an
annual fee under this Rule;
e.
R.D.E. 219(d), which states that on or before July 1 of each year, all
persons required by this Rule to pay an annual fee shall file with the
Administrative Office a signed statement on the form prescribed by the
Administrative Office, and that:
(1)
the statement shall set forth, inter alia:
(ii)
the
attorney’s
current
residence
and
office
addresses;
f.
R.D.E. 219(d)(2), which states, in pertinent part, that payment of the
annual fee shall accompany the statement; and
g.
R.D.E. 219(d)(3), which states that every person who has filed such a
statement shall notify the Administrative Office in writing of any change
in the information previously submitted within 30 days after such change.
V. DISCUSSION
Respondent is a 42-year old attorney who was admitted to practice in Pennsylvania in
1985. He began practice with a very active litigation firm in Philadelphia. In 1987, while
remaining with the Philadelphia firm, Respondent moved his own office to New Jersey.
Respondent failed to notify the Disciplinary Board or the Administrative Office of the
Pennsylvania Courts that he had moved.
Beginning in 1988, Respondent failed to send in his required annual attorney’s statement
or pay his annual fee. His explanation for this failure is that no notices came to his new office
and he assumed that the principal partner of his Philadelphia firm would take are of whatever had
to be done.
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By Supreme Court Order dated December 29, 1988, Respondent was transferred to
inactive status. Respondent claims that he was unaware of this fact since notice was not sent to
his office in New Jersey.
From 1993 through 1995, Respondent attended CLE courses, but he thereafter ceased
compliance with these rules. He claim that he was unaware that compliance was mandatory.1
Throughout this entire period, Respondent actively and regularly practiced in the
Pennsylvania courts.
Respondent submits that he first became aware of his status and derelictions in 2000, at
which time he ceased practicing in Pennsylvania.
Respondent has no prior disciplinary record and was able to present strong character
evidence of his reputation and ability.
Respondent admits his violations and has expressed remorse.
The question before the Board is determination of the appropriate discipline. Although
we give great weight to the recommendation of the Hearing Panel, we are not bound by that
recommendation.
Office of Disciplinary Counsel v. Anonymous Attorney A, 717 A.2d 402
(Pa. 1998).
We conclude that Respondent’s gross neglect calls for more than a Public Censure. As
we noted in In re Anonymous, No. 123 DB 1996, 41 Pa. D&C 4th 290 (1998), “it is not
unreasonable to expect an attorney to be continuously aware of the status of his privilege to
practice law.”
Here, the Respondent was on inactive status for 12 years and failed to pay his fees or file
his annual report. His excuse that he never received notices is unavailing since he never notified
authorities of his new address. His excuse for lack of CLE compliance – that he never knew it
was mandatory – is legally ineffective and, quite frankly, incredible.
1
In 1997, Respondent’s Philadelphia firm ceased operations due to the death of the
principal partner. This presents the question of whom Respondent was thereafter relying upon to
assure compliance with registration requirements. Respondent’s answer seems to be that he was
“inattentive.” (Respondent’s Answer to Brief on Exceptions, p. 21.)
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In re Anonymous, No. 123 DB 1996, supra is our most recent case of discipline against an
inactive attorney.
In that case, a six-month suspension was imposed on an attorney who
continued unauthorized practice even during his disciplinary proceedings.
The instant
Respondent’s violations were of a much longer duration and involve a more complete blindness
to annual requirements. On the other hand, Respondent’s actions were not defiant and, at some
point at least, he ceased his unauthorized practice. Further, his unblemished record and good
reputation as an able attorney work in his favor.
We recommend a suspension of three months understanding, of course, that to regain
active status, Respondent will be required to make up his past derelictions as required by R.D.E.
Rule 218(a).
VI. RECOMMENDATION
The Disciplinary Board recommends that Respondent be suspended from the practice of
law for a period of three (3) months.
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:
John W. Morris, Member
Date: November 13, 2002
Board members Iole, Cunningham, Halpern, Peck, and Saidis dissent and would
recommend a one-year and one day suspension.
Board members Schultz and McLaughlin did not participate in the June 12, 2002
adjudication.
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ORDER
PER CURIAM:
AND NOW, this 31st day of January, 2003, upon consideration of the Report and
Recommendation of the Disciplinary Board dated November 13, 2002, the Petition for Review
and response thereto, it is hereby
ORDERED that Steven Clark Forman be and he is suspended from the Bar of this
Commonwealth for a period of one year and one day, 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.
Mr. Justice Nigro dissents and would suspend respondent for a period of two years.
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