No. 196, Disciplinary Docket No. 3
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BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
In the Matter of
AARON DAVID DENKER
PETITION FOR REINSTATEMENT
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No. 196, Disciplinary Docket
No. 3 – Supreme Court
No. 52 DB 1996 - Disciplinary Board
Attorney Registration No. 25023
(Out of State)
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, Aaron David Denker, filed a Petition for Reinstatement to the Bar of
Pennsylvania on May 2, 2002. By Order of the Supreme Court of Pennsylvania dated
February 10, 1998, Petitioner was Disbarred from the practice of law retroactive to May 6,
1996.
A reinstatement hearing was held on January 24, 2003, before Hearing
Committee 1.09 comprised of Chair, Denise Joy Smyler, Esquire, and Members Thomas G.
Wilkinson, Jr., Esquire and Jerry Michael Lehocky, Esquire. Petitioner was represented by
James C. Schwartzman, Esquire. Petitioner testified and presented the testimony of nine
witnesses.
The Hearing Committee filed a Report on May 15, 2003 and recommended
that the Petition for Reinstatement be granted.
This matter was adjudicated by the Disciplinary Board at the meeting of July
16, 2003.
II.
FINDINGS OF FACT
The Board makes the following findings of fact:
1.
Petitioner was born in 1951 and was admitted to the practice of law in
Pennsylvania in 1977. His current address is 50 Cohasset Lane, Cherry Hill, NJ 08003.
2.
On October 27, 1995, Petitioner executed a plea agreement and
entered a guilty plea to one count of money laundering in violation of 18 U.S.C.
§1956(a)(3).
3.
The facts underlying Petitioner’s criminal conviction are as follows:
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a)
From about July 1993 to October 1993, Petitioner, in exchange
for a fee, knowingly and willingly assisted his client and client’s
associate in a scheme to launder a total of $100,000 of illegal
proceeds.
b)
The scheme consisted of converting cash obtained from illegal
drug activities into various negotiable instruments, each in a
denomination of less than $10,000.
c)
Petitioner was paid a total of $6,500 to his client for these
illegal services.
d)
On July 28, 1993, Petitioner delivered to his client 53 American
Express and Merchant Express money orders totaling $12,000;
three Midlantic cashier checks totaling $24,000; and two
personal checks totaling $14,000.
e)
On October 20, 1993, Petitioner delivered to his client 54
American Express and Merchant Express money orders
totaling $15,000; one personal check for $3,000; and four
Midlantic cashier checks totaling $32,000.
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4.
On February 6, 1996, Petitioner was sentenced to a term of 27 months
of imprisonment together with a $20,000 fine and two years of supervised release upon
expiration of the prison term.
5.
Petitioner served 19 months of his sentence and thereafter served
approximately four months in a halfway house in Philadelphia on a work release program.
6.
Petitioner has completed his sentence and has met all of the conditions
of his supervised release.
7.
Petitioner understood at the time of the transactions that the person
directing the transactions was a drug trafficker.
8.
Petitioner performed these transactions because he believed that this
drug trafficker would be a continuing source of legal business for him.
9.
Petitioner claimed that he did not fully understand the prohibition on
money laundering at the time of the offense.
10.
Petitioner was disbarred in Pennsylvania by Order of the Supreme
Court dated February 10, 1998, retroactive to May 6, 1996, the date of his temporary
suspension from practice.
11.
At the time of his release from the halfway house, Petitioner was
employed as a loan officer in a mortgage finance company. From October 2000 to the
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present Petitioner has been employed by Eastern Mortgage Services in Marlton, New
Jersey.
12.
Since the time of his release and due to the financial strain on his
family, Petitioner has worked long hours to pay off his debts and earn income.
13.
education courses.
Petitioner successfully completed all of the required continuing legal
He subscribes to Trial Magazine, Mortgage Originator, and the
Camden County Bar Magazine. He also reads several other bar journals.
14.
Since his release from incarceration, Petitioner has been involved in
community and civic service including working with school children and participating in
programs through Jewish Family Services.
15.
Petitioner admits that at the time of the misconduct, motivation for new
clients and greed clouded his thinking. He further admits that his actions were “stupid and
careless”. He has taken full responsibility for his actions.
16.
Nine character witnesses testified on Petitioner's behalf.
witnesses included fellow attorneys and members of Petitioner’s community.
These
The
testimony indicated that Petitioner has a reputation as a truthful and law-abiding person
who has demonstrated remorse for his past actions.
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17.
If reinstated, Petitioner plans to concentrate his practice in the
mortgage business with an emphasis on litigation regarding residential and commercial
transactions.
III.
CONCLUSIONS OF LAW
1.
The misconduct for which Petitioner was disbarred is not so egregious
as to preclude consideration of his Petition for Reinstatement.
2.
Petitioner has been Disbarred since May 6, 1996, approximately
seven years. This is an insufficient amount of time to dissipate the
detrimental impact of Petitioner’s misconduct on the integrity and
standing of the bar, the administration of justice, and the public
interest.
IV.
DISCUSSION
This matter comes before the Disciplinary Board on a Petition for
Reinstatement filed by Aaron David Denker. Petitioner was Disbarred by Order of the
Supreme Court of Pennsylvania dated February 10, 1998.
The Order made the
Disbarment retroactive to May 6, 1996, the date of Petitioner's temporary suspension.
Petitioner bears the burden of proof by clear and convincing evidence that he is qualified for
readmission. Pa.R.D.E. 218(c)(3)(i).
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Petitioner’s request for reinstatement to the bar after disbarment is initially
governed by the standard set forth by the Supreme Court of Pennsylvania in Office of
Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986). As a threshold matter, the Board
must determine whether Petitioner has demonstrated that his breach of trust was not so
egregious that it precludes him from reinstatement.
It is helpful for the Board to examine the circumstances surrounding the facts
which resulted in Petitioner's conviction in making the critical determination of whether
Petitioner has met the Keller test. Petitioner engaged in a scheme whereby he laundered
money for a client who was known to him as a drug trafficker. Petitioner accepted cash
from this client and exchanged it for a series of checks and money orders in denominations
of less than $10,000, in order to avoid IRS reporting requirements. Petitioner knew that the
cash he received was the proceeds of illegal drug transactions. Petitioner was paid $6,500
for his services. Petitioner explained that he performed these transactions because he
believed that the drug trafficking client was going to be a continuing source of legal
business and income for him.
Although this misconduct was reprehensible and clearly in violation of the law,
the Board concludes that it is not so egregious as to preclude Petitioner from reinstatement.
Indeed, Petitioner’s conduct is similar to that of other attorneys who have been disbarred
and who have sought and been granted reinstatement. See, In re Anonymous No. 17 DB
90, 29 Pa. D. & C. 4th 124 (1995) (conduct of attorney disbarred after conviction of paying a
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kick back to union did not preclude reinstatement), In re Anonymous No 72 DB 86, 33 Pa.
D. & C. 4th 567 (1996) (conduct of attorney who aided client in obtaining substance
necessary for manufacture of methamphetamines, and who engaged in criminal act for
monetary profit, reinstated after nine years), In re Anonymous No. 47 DB 82, 29 Pa. D. & C.
4th 304 (1995) (attorney disbarred after conviction for conspiracy to distribute LSD,
distribution of LSD, and aiding and abetting interstate travel to permit an unlawful activity
reinstated after thirteen years).
Having concluded that Petitioner’s misconduct is not so egregious as to
preclude the Board from considering his Petition for Reinstatement, the Board must now
determine whether Petitioner has met his burden of proving by clear and convincing
evidence that his resumption of the practice of law at this time would not have a detrimental
impact on the integrity and standing of the bar, the administration of justice, or the public
interest, and that he has the moral qualifications, competency and learning in the law
required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to
make this determination the Board must consider the amount of time that has passed since
Petitioner was disbarred, as well as his efforts at rehabilitation. In re Verlin, 731 A.2d 600
(Pa. 1999).
Petitioner was disbarred retroactive to May 1996 and has been without a
license to practice law for approximately seven years. From March of 1996 until October
1997, he served his prison sentence at the federal prison in Schuylkill County. From
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October 1997 to approximately February 1998, he was in a halfway house in Philadelphia
and did work release. The years since the termination of his prison sentence have been
spent working to pay debts and restore order to his life. Petitioner has worked in the
mortgage business and has been employed by Eastern Mortgage Services since October
2000. He has attended his required CLE courses and reviewed legal journals. He has been
active with Jewish Family Services.
It is evident that Petitioner is working to rehabilitate himself, yet the Board is
of the opinion that Petitioner is not ready for reinstatement. The misconduct committed by
Petitioner showed an egregious disregard for his responsibilities to the legal profession and
society in general. Petitioner knowingly and willingly engaged in a money laundering
scheme for a client who trafficked drugs because he believed that the client would
represent an ongoing business opportunity. Petitioner was motivated by pure greed and
appeared to have no qualms about committing criminal acts to further his monetary desires.
Given the nature of Petitioner’s acts, the Board believes that permitting his readmission to
the bar after only seven years of disbarment would do further damage to the public trust. In
Re Anonymous No. 50 DB 1994, No 42 Disciplinary Docket No. 3 (Pa. Jan. 31, 2002)
The Board recommends that the Petition for Reinstatement be denied.
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V.
RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania recommends
that Petitioner, Aaron David Denker, be denied reinstatement 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:____________________________
Martin W. Sheerer, Member
Date: March 5, 2004
Board Members Cunningham, Rudnitsky, McLaughlin and Curran dissented and would
grant reinstatement.
BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
In the matter of
AARON DAVID DENKER
PETITION FOR REINSTATEMENT
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No. 196, Disciplinary Docket No. 3
Supreme Court
No. 52 DB 1996 – Disciplinary Board
Attorney Registration No. 25023
(Out of State)
DISSENTING REPORT AND RECOMMENDATION
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES
OF THE SUPREME COURT OF PENNSYLVANIA:
A majority of the Board has recommended to the Supreme Court that
Respondent be denied reinstatement to the practice of law. Four members of the
Board, including myself, dissented from the recommendation of the Board. Instead, we
adopt the recommendation of the Hearing Committee and recommend that Petitioner be
reinstated.1
FINDINGS OF FACT
The majority report contains 17 findings of fact. Finding # 16 is seriously
flawed, in that it fails to state a finding. Instead, it merely describes testimony presented
on Petitioner’s behalf.
1 Office of Disciplinary Counsel filed no exceptions to the report of the Hearing Committee recommending
reinstatement.
In contrast, the Hearing Committee in it’s report summarized in great detail the
extensive testimony presented on behalf of petitioner and in the discussion section of
it’s report found as follows:
“In sum, no witness testified that Petitioner was
untrustworthy or unfit to resume the practice of law. The
large number of live witnesses and reference letters
support the view that Petitioner has developed a
reputation in the community as an honest and law
abiding person in whom other lawyers and clients may
place their trust.”
(Hearing Committee Report p. 15)
The record includes 33 letters with evidence of Petitioner’s good character. Nine
character witnesses testified.
The majority report at finding of fact # 14 understates the findings of the Hearing
Committee as to Petitioner’s community and civic service. In contrast, the Hearing
Committee found that:
“Petitioner has also demonstrated his commitment and
dedication to his community through working with
underprivileged children in the Camden School District on
student mock trials; he participates in Jewish Family
Services, clothing drives and fundraising and city
beautification projects, N.T. at 188-192.”
(Hearing Committee Report p. 14)
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Furthermore, the Hearing Committee described Petitioner’s employment and, more
importantly, stated their finding with regard to his honesty and integrity, as follows:
“Since that time, Petitioner has secured employment as a
loan officer in the mortgage finance business. He has
demonstrated, and character witnesses have so testified,
that he is well respected in the mortgage banking
industry, and is recommended for his honesty and
integrity. See p. 1 at tab 4.”
(Hearing Committee Report p. 14)
The majority report states at finding of fact #15 that Petitioner
has taken full responsibility for his actions. However, the Hearing
Committee went much further than that and found as follows:
“Petitioner has testified that even though at the time of
arrest he resisted an admission of wrongdoing, he has
completely and unequivocally admitted his guilt, accepted
responsibility for his actions and admits that what he was
doing at the time was wrong and unlawful. N.T. 170,
172, 193-195. Furthermore, the recurring theme through
each character witness who testified about Petitioner’s
reputation was that he was and still is an honest, truthful,
law-abiding person.” (emphasis added)
(Hearing Committee Report p. 15)
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The evidence is simply overwhelming that the crime committed by Petitioner was
an aberration in an otherwise unblemished legal career and commendable life. The
Hearing Committee so found and the Board has not explained how or why that finding
should be ignored.
LENGTH OF DISBARRMENT
The only reason the Board gives for recommending denial of reinstatement is
that, “Given the nature of Petitioner’s acts, the Board believes that permitting his
readmission to the Bar after only seven years of disbarment would do further damage to
the public trust.” Board Report at p. 9 Petitioner was disbarred retroactive to May 6,
1996. That means that he has been out of the profession for approximately 8 years.
The Court has reinstated lawyers who have been out for less time, even where
the acts committed by them have been more serious. See for example In re
Anonymous No. 104 DB 90, 34 Pa. D. & C. 4th 304 (Attorney stole client funds.
Attorney disbarred on consent 2/27/91. Attorney reinstated by court order 3/1/96.) In re:
Anonymous No. 17 D.B. 90, 29 Pa. D. & C. 4th 124 (Attorney convicted of racketeering
and bribery. Attorney disbarred 1/30/90. Attorney reinstated by court order 11/7/95.) In
re: Anonymous 36 DB 88, 24 Pa. D. & C. 4th 519 (Attorney disbarred as a result of
conviction of distributing cocaine 1/26/88. Attorney reinstated by court order 9/13/94.)
Petitioner in the instant matter did nothing to harm his clients, he stole no money
from them. Instead, his crime was that he was helping them launder money. His clients
were drug dealers, but Petitioner was not involved in their illegal drug activity. There is
simply no reason on this record why Petitioner should be denied reinstatement at this
time and be required to go through this process again. There is no reason why he
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hasn’t served a sufficient length of disbarment. If there were, we would expect that the
Office of Disciplinary Counsel would have voiced some objection or filed an exception to
the Hearing Committee’s report.
Respectfully submitted,
By: ____________________________
Charles J. Cunningham, III
Former Board Chair
Date: March 5, 2004
Board Members Rudnitsky, McLaughlin and Curran join in this Dissent.
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PER CURIAM:
AND NOW, this 28th day of May, 2004, upon consideration of the Report and
Recommendations of the Disciplinary Board and Dissenting Report and Recommendation
dated March 5, 2004, the Petition for Reinstatement is granted.
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.
Madam Justice Newman dissents and would deny reinstatement.
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