BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL
Petitioner
v.
WILLIAM W. McVAY, III
Respondent
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No. 984, Disciplinary Docket No. 3
No. 112 DB 2002
Attorney Registration No. 58310
(Allegheny 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
On November 25, 2003, Office of Disciplinary Counsel filed a Petition for
Discipline against Respondent, William W. McVay, III. The Petition charged Respondent
with ethical misconduct arising from his failure to appear before the Disciplinary Board for
the imposition of a private reprimand. Respondent did not file an Answer to Petition.
A disciplinary hearing was held on April 14, 2004, before Hearing Committee
4.14 comprised of Chair Beth L.F. Orbison, Esquire, and Members John P. Goodrich,
Esquire, and Marcia H. Haller, Esquire. Respondent did not appear for the hearing.
The Hearing Committee filed a Report on August 11, 2004, finding that
Respondent violated the Rules of Disciplinary Enforcement and Rules of Professional
Conduct charged in the Petition for Discipline, and recommending that Respondent be
suspended for one year and one day.
This matter was adjudicated by the Disciplinary Board at the meeting on
September 27, 2004.
II.
FINDINGS OF FACT
The Board makes the following findings of fact:
1.
Petitioner, whose principal office is located at Suite 1400, 200 North
Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the
Pennsylvania Rules of Disciplinary Enforcement, with the power and 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, William W. McVay, III, was born in 1963 and was
admitted to practice law in the Commonwealth of Pennsylvania in 1990. He maintains his
office at 107 Lamar Road, Pittsburgh PA 15241. Respondent is subject to the disciplinary
jurisdiction of the Disciplinary Board of the Supreme Court.
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3.
Respondent is currently on inactive status due to his failure to fulfill his
required Continuing Legal Education courses and to pay his annual assessment.
4.
Respondent has no prior record of discipline.
5.
In accordance with Rules 208(a)(2), (3) and (5), Pa.R.D.E., by Order
dated August 23, 2002, the Disciplinary Board determined that Respondent should receive
a Private Reprimand with Condition as a result involving misconduct in two separate
matters at File Reference #C4-01-1049 and #C4-02-274.
6.
The Condition attached to the Private Reprimand states that at least
ten days prior to the scheduled reprimand, Respondent submit to the Executive Director
and Secretary of the Board and Disciplinary Counsel proof that he paid $5,000 to
Beechwood Settlement Funding, Inc.
7.
By letter dated August 23, 2002, which was sent to Respondent by
both first class and certified mail, Respondent was informed of the determination of the
Disciplinary Board, and was forwarded a copy of the Disciplinary Board’s Order dated
August 23, 2002.
8.
The letter dated August 23, 2002 further informed Respondent that
pursuant to Rule 208(a)(6), Pa.R.D.E., Respondent had twenty days to demand as of right
that a formal proceeding be instituted against him before a hearing committee and that in
the event of such demand Respondent need not appear for the administration of the private
reprimand.
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9.
On August 26, 2002, Respondent received the copies of the August
23, 2002 letter and Order sent by certified mail.
10.
Respondent made no demand that a formal proceeding be instituted.
11.
As a result of Respondent's failure to demand the institution of formal
proceedings against him Respondent is conclusively deemed to have violated the Rules of
Professional Conduct set forth in the August 23, 2002 letter and order.
12.
By Notice dated December 16, 2002, sent to him by first class and
certified mail, Respondent was informed that his private reprimand was scheduled for
January 15, 2003.
13.
Although the certified mail copy of the Notice was returned unclaimed,
the copy sent by first class mail was not returned.
14.
On December 18, 2002, Respondent made a request via voice mail
message to Elaine M. Bixler, Executive Director and Secretary to the Disciplinary Board,
that the January 15, 2003 reprimand be continued because he was scheduled for ear
surgery on that day.
15.
By letter dated January 9, 2003, sent to Respondent by certified mail
and received by him on January 12, 2003, Ms. Bixler informed him the private reprimand
would be rescheduled for May 14, 2003 in Hershey, Pennsylvania.
16.
In that same letter, Ms. Bixler informed Respondent that the Board
Chair directed that evidence of compliance with the condition attached to the private
reprimand must be received on or before January 29, 2003.
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17.
Sometime before January 29, 2003, Respondent informed Ms. Bixler
that he would be unable to comply with the condition until he and his wife refinanced their
mortgage, the closing of which was expected to occur in about 45 days, upon which closing
Respondent would immediately comply with the condition.
18.
By letter dated January 29, 2003, Respondent confirmed his
agreement with Ms. Bixler.
19.
Respondent has not complied with the condition attached to the private
20.
By Notice to Appear dated March 28, 2003, sent by first class and
reprimand.
certified mail, Respondent was directed to appear for imposition of the private reprimand on
May 14, 2003 in Hershey, Pennsylvania.
21.
Although the certified mail copy of the Notice to Appear dated March
28, 2003 was returned unclaimed, the first class mail was not returned.
22.
On May 14, 2003, Respondent failed to appear for the private
23.
By letter dated October 6, 2003, sent by first class and certified mail,
reprimand.
Respondent was directed by the Chair of the Disciplinary Board to provide within ten days
of date of the letter, “good cause” for his failure to appear for the private reprimand.
24.
Although the certified mail copy of the October 6, 2003 letter was
returned unclaimed, the first class mail was not returned.
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25.
Respondent never replied to the Disciplinary Board Chair’s letter of
October 6, 2003.
26.
Respondent failed to file an Answer to the Petition for Discipline filed
against him on November 25, 2003.
27.
Respondent was personally served with notice of the disciplinary
hearing scheduled for April 14, 2004.
28.
Respondent failed to appear or participate in the disciplinary hearing
held on April 14, 2004.
III.
CONCLUSIONS OF LAW
By his conduct as set forth above, Respondent violated the following Rules of
Professional Conduct:
1.
Pa.R.D.E. 203(b)(2) - Respondent’s willful failure to appear before the
Board for Private Reprimand is grounds for discipline.
2.
RPC 8.4 (d) – It is professional misconduct for a lawyer to engage in
conduct that is prejudicial to the administration of justice.
3.
Respondent is conclusively deemed to have violated the following
Rules of Professional Conduct as a result of his failure to demand the institution of formal
proceedings:
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a. 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.
b. RPC 1.15(b) – Upon receiving funds or other property in which
a client or third person has an interest, a lawyer shall promptly
notify the client or third person. 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.
c. RPC 8.4(c) - It is professional misconduct for a lawyer to
engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.
d. RPC 1.3 – A lawyer shall act with reasonable diligence and
promptness is representing a client.
e. RPC 1.4(a) – A lawyer shall keep a client informed about the
status of a matter and promptly comply with reasonable requests
for information.
f.
RPC 8.4(d) – It is professional misconduct for a lawyer to
engage in conduct that is prejudicial to the administration of
justice.
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IV.
DISCUSSION
This matter is before the Board on a Petition for Discipline charging
Respondent with violations of the Rules of Disciplinary Enforcement and Rules of
Professional Conduct arising out of his failure to appear for a private reprimand.
Respondent was personally served with the Petition for Discipline in this matter and did not
file an Answer. Therefore the allegations are deemed admitted. Rule 208(b)(3), Pa.R.D.E.
Respondent engaged in misconduct in regard to two separate client matters.
This misconduct involved client neglect, commingling of funds and failure to return client
funds to which Respondent was not entitled to keep. Respondent was informed of the
determination of a private reprimand and made no demand for the imposition of formal
proceedings. The private reprimand was scheduled for January 2003, but was continued at
Respondent's request due to medical reasons. The Board Secretary then rescheduled the
private reprimand for May 2003. Respondent failed to appear and failed to comply with
specific conditions attached to the reprimand. He did not present good cause for his failure
to appear. Respondent subsequently failed to appear for the disciplinary hearing in this
matter, although he was personally served with notice of time and place.
The record clearly demonstrates Respondent's total disregard for his
professional license. He has refused to take part in any of the proceedings brought against
him. The record is devoid of any explanation or justification for Respondent's actions. The
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Board cannot allow Respondent to continue practicing without analysis of his fitness to do
so. Although Respondent is currently on inactive status, at this point in time he need only
fulfill his Continuing Legal Education requirements and pay his annual assessment to
obtain reinstatement. This could potentially cause harm to the public. A suspension of one
year and one day will ensure that Respondent’s fitness to practice is tested and found
sufficient before he is allowed to practice law in Pennsylvania.
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V.
RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously
recommends that the Respondent, William W. McVay, III, be suspended from the practice
of law for a period of one year and one day.
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:____________________________
Francis X. O’Connor, Member
Date: November 2, 2004
Board Member McLaughlin recused in this matter.
Board Member Nordenberg did not participate in the September 27, 2004 adjudication.
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PER CURIAM:
AND NOW, this 31st day of January, 2005, upon consideration of the Report
and Recommendations of the Disciplinary Board dated November 2, 2004, it is hereby
ORDERED that WILLIAM W. McVAY, III 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.
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