No. 1729, Disciplinary Docket No. 3

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Download PDF [J-8-2013] IN THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, Petitioner No. 1729 Disciplinary Docket No. 3 No. 51 DB 2011 v. Attorney Registration No. 82074 GLORI ALISHA KASNER, Respondent (Montgomery County) Argued: March 6, 2013 ORDER PER CURIAM: Upon consideration of the Report and Recommendations of the Disciplinary Board dated August 9, 2012, and following oral argument, it is hereby ORDERED that Glori Alisha Kasner is suspended from the Bar of this Commonwealth for a period of five years retroactive to June 28, 2011, and she 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. Madame Justice Orie Melvin did not participate in the consideration or decision of this case. A True Copy_ Patricia Nicola As Of 3/14/L013 Att!lSt: ~nu~&J Ch1ef Cler Supreme Court of Pennsylvania BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL Petitioner No. 1729 Disciplinary Docket No.3 No. 51 DB 2011 v. Attorney Registration No. 82074 GLORI ALISHA KASNER Respondent (Montgomery 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 April?, 2011, a Joint Petition for Temporary Suspension was filed with the Supreme Court in the above-captioned matter. Shortly thereafter, on May 23, 2011, a Joint Petition for Discipline on Consent was filed by Petitioner. By Order of June 28, 2011, the Supreme Court placed Respondent on temporary suspension. By Order of September 26, 2011, the Supreme Court denied the Petition for Discipline on Consent. Office of Disciplinary Counsel filed a Petition for Discipline against Respondent on October 12, 2011, charging her with professional misconduct arising out of her criminal conviction of two counts of mail fraud. Respondent filed an Answer to Petition on December 13, 2011. A disciplinary hearing was held on March 12, 2012, before a District II Hearing Committee comprised of Chair Nicholas J. Caniglia, Esquire, and Members Francis J. Catania, Esquire, and Michael J. O'Connor, Esquire. Respondent was represented by Robert Tintner, Esquire. The Hearing Committee filed a Report on June 5, 2012 and recommended that Respondent be suspended for a period of three years, retroactive to June 28, 2011, the date of the temporary suspension. No Briefs on Exception were filed by the parties. This matter was adjudicated by the Disciplinary Board at the meeting on July 21,2012. II. FINDINGS OF FACT The Board makes the following findings of fact: 1. Petitioner, whose principal office is located at 601 Commonwealth Ave., Suite 2700, Harrisburg, Pennsylvania, 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. 2 2. Respondent is Glori A Kasner. She was born in 1973 and was admitted to the practice of law in 1998. She was placed on administrative suspension on December 18, 2010 for failure to pay her annual assessment. Her last registered office address was 807 Red Wing Lane, Huntingdon Valley, PA 19006. She is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court. 3. Respondent has no history of discipline in Pennsylvania. 4. On April 5, 2011, Petitioner and Respondent filed with the Supreme Court of Pennsylvania a Joint Petition to Temporarily Suspend an Attorney. 5. By Order dated June 28, 2011, the Supreme Court of Pennsylvania granted the Joint Petition and placed Respondent on temporary suspension. 6. Between on or about February 12, 2004 and on or about May 17, 2005, Respondent, Respondent's client, and other persons were participants in the submission of fraudulent accident claims relating to a fictitious automobile accident which allegedly occurred on February 12, 2004. Between said dates the following occurred: a. A chiropractor falsified the medical records of Respondent's client and fraudulently billed the insurance company for treatment that was not provided to the client; and b. Respondent and Respondent's client fraudulently received a civil settlement payment for $7,000 which was partially based upon the fictitious treatment records for the client. 7. Between on or about July 12, 2004 and on or about August 4, 2006, Respondent, Respondent's client, and other persons were participants in the submission of 3 fraudulent accident claims relating to a fictitious automobile accident which allegedly occurred on July 12, 2004. Between said dates the following occurred: a. A chiropractor falsified the medical records of Respondent's client and fraudulently billed the insurance company for treatment that was not provided to the client; and b. Respondent and Respondent's client fraudulently received a civil settlement payment for $2,500 which was partially based upon the fictitious treatment records for the client. 8. On February 18, 2010, a federal grand jury for the Eastern District of Pennsylvania returned an indictment against Respondent and other defendants, alleging that they had aided and abetted in the filing of fraudulent insurance claims by falsely representing that an automobile accident had occurred and that injuries had been sustained in order to obtain free chiropractic treatment and to fraudulently recover personal injury settlements. 9. On November 18, 2010, Respondent entered a plea of guilty to two counts of aiding and abetting mail fraud in violation of 18 U.S. C. §1341 and 18 U.S. C. §2, pursuant to a plea agreement before the Honorable Michael M. Baylson. 10. On January 18, 2011, Respondent was sentenced by Judge Baylson in accordance with the plea agreement to probation for a term of three years, with the first four months to be home detention. Respondent was allowed to participate in schoolrelated activities with her minor children and was ordered to pay restitution of $9,500 and assessed a fine of $10,000. 4 11. Respondent served her home detention and paid her restitution and fine. She is currently serving her probation. 12. Respondent showed sincere remorse and cooperated with Petitioner in the disciplinary process. Ill. CONCLUSIONS OF LAW By her actions as set forth above, Respondent violated the following Rules of Professional Conduct and Rule of Disciplinary Enforcement: 1. RPC 8.4(b)- It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. 2. RPC 8.4(c)- It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. 3. Pa.R.D.E. 203(b)(1) -Conviction of a crime shall be grounds for discipline. IV. DISCUSSION This matter is before the Disciplinary Board for consideration of the disciplinary charges filed against Respondent arising from her conviction of two counts of aiding and abetting mail fraud. When an attorney has been convicted of a crime, the sole issue to be determined is the discipline to be imposed. Rule 214(f)(1), Pa.R.D.E. Events surrounding the criminal conviction must be taken into account when determining an appropriate 5 measure of discipline. Office of Disciplinary Counsel v. Valentino, 730 A.2d 479 (Pa. 1999). As the determination of discipline is a fact-intensive endeavor, consideration should be given to aggravating and mitigating circumstances. Office of Disciplinary Counsel v. Eilberg, 441 A.2d 1193 (Pa. 1982). Respondent was convicted of the crime of mail fraud. Her conduct consisted of two separate incidents spanning two and one-half years. She participated in a scheme to submit fictitious medical reports and bills. Two insurance settlement checks were issued in the amounts of $7,000 and $2,500. Respondent entered a plea of guilty to two separate counts of aiding and abetting mail fraud. She was sentenced to probation of three years with the first four months to be performed in home detention, restitution in the amount of $9,500 and a fine of $10,000. Respondent expressed remorse for her actions. She pled guilty to the offenses charged. She fully cooperated with Petitioner during the disciplinary process. She made restitution and paid her fine, and is fulfilling all other aspects of her criminal sentence. She has no prior record of discipline or criminal activity. The crime of mail fraud has occasioned a range of sanctions from suspension of 18 months up to disbarment. Mail fraud comprises a variety of underlying acts of misconduct. In a case involving real estate fraud, the attorney received a two year 1 suspension. In re Anonymous No. 16 DB 87, 8 Pa. D. & C. 4 h 493 (1990). In several cases the mail fraud involved insurance fraud, similar to the instant matter. In re Anonymous No. 41 DB 1996, No. 193 Disciplinary Docket No. 3 (Pa. July 15, 1997) (convicted of mail fraud and aiding and abetting, mitigating circumstances, 18 months 6 suspension); In re Anonymous No. 21 DB 1996, No. 174 Disciplinary Docket No.3 (Pa. May 6, 1997) (two counts of mail fraud, three year suspension); In re Anonymous No. 22 DB 1996, No. 176 Disciplinary Docket No. 3 (Pa. July 29, 1997) (one count of mail fraud, three year suspension); In re Anonymous No. 139 DB 1995, No. 151 Disciplinary Docket No., 3 (Pa. June 13, 1997) (two counts of mail fraud and two counts of aiding and abetting, three year suspension). A case of mail fraud involving fraud against insurance companies resulted in a five year suspension. Office of Disciplinary Counsel v. Valentino, 730 A.2d 479 (Pa. 1999). In that matter, the doctor submitted fraudulent medical bills overstating the amount of medical services that had been provided to patients. The case involved actual injuries where treatment was sought. Mr. Valentino then mailed the files and reports to the insurance companies which issued settlement checks to him. One of the cases involved the personal injury action of Mr. Valentino's mother. She was subpoenaed to testify before the grand jury about her visits to the doctor. Mr. Valentino acted as her attorney and advised her to give false testimony regarding her treatment, which she did. Realizing the seriousness of the situation, Mr. Valentino immediately contacted his attorney and had the improper testimony corrected. Mr. Valentino then admitted his involvement in the scheme. He entered a guilty plea to one count of mail fraud. In a more recent matter, the attorney in Office of Disciplinarv v. Rhonda McCullough Anderson, 156 DB 2004, 971 Disciplinary Docket No. 3 (Pa. Feb. 23, 2007) was suspended for a period of five years for her conviction of one count of mail fraud. Ms. Anderson assisted Corey Kemp, at that time the City Treasurer of Philadelphia, in fraudulently enriching himself. Mr. Kemp suggested that Ms. Anderson start an asset 7 locator business, which involved finding the owners of unclaimed City bonds and assisting them in obtaining payment. Mr. Kemp explained that he wanted a share of the fees Ms. Anderson collected. Ms. Anderson agreed to pay Mr. Kemp 35% of her earnings in cash. Ms. Anderson set up a part-time business as an asset-locator, performed the work properly and charged legally approved fees. Initially she paid Mr. Kemp the agreed upon 35% for a total of $1,300, but eventually Ms. Anderson concluded that the payments were improper and she stopped making them. Ms. Anderson had no prior discipline, agreed to the entry of a temporary suspension, entered a guilty plea to her crime, cooperated with Office of Disciplinary Counsel and showed remorse. While the Board's recommendation was for a three year suspension, the Court rejected this recommendation in favor of a longer suspension. An attorney was disbarred for his conviction of mail fraud, wire fraud and aiding and abetting the criminal conduct of others. He participated in prosecuting personal injury cases that were fabrications. At some point after accepting 16 "fall down" cases, the attorney learned that the claims were false. He did not act to remove himself from the cases in a prompt manner, settling two of the cases and receiving about $2,800 in fees for himself. In the Matter of Robert Edward Faber, No. 13 DB 1997, No. 307 Disciplinary Docket No. 3 (Pa. Nov. 7, 2007). In the instant matter, Petitioner and Respondent believe that a three year suspension is supported by case law and agree to a three year suspension. The Hearing Committee has recommended a three year suspension. Review of the case law and the facts of this matter persuade the Board that three years is not an adequate resolution to this matter. 8 The Board is cognizant of the line of mail fraud cases from the late 1990s resulting in suspensions of three years. However, we are particularly persuaded by the case of Anderson from 2007, cited above. Therein, in a matter very similar to the instant one, particularly in the similarity of mitigating factors, the Board recommended a three year suspension and the Court imposed a five year suspension. A comparison of the facts of Anderson with the instant matter reveals that Ms. Anderson did not personally enrich herself, as did Respondent, and Ms. Anderson voluntarily ceased the activity upon her belated judgment that it was improper. Clearly Respondent's conduct herein was dishonest, deceitful and fraudulent. Respondent participated in a scheme wherein a settlement payment was ultimately received based on a fictitious car accident, falsified medical records, and fraudulent billing to an insurance company for treatment that was never provided. An injury case was created out of whole cloth for the sole purpose of making money. This happened not just once, but two times, with Respondent a willing participant on both occasions. Moreover, the first occasion was between February 12, 2004 and May 17, 2005, while the second occasion was between July 12, 2004 and August4, 2006. Respondent had the opportunity to examine her actions after the first occasion and make a different choice the second time, but she still chose to involve herself in criminal activity. Respondent's actions are the epitome of dishonest conduct. The Supreme Court has held that dishonest conduct may warrant disbarment. Office of Disciplinary Counsel v. Grisgby, 425 A.2d 730 (Pa. 1981); Office of Disciplinary Counsel v. Holsten, 619 A.2d 1054 (Pa. 1993). Disbarment is an extreme sanction and is properly reserved for the most egregious matters, because it represents a 9 termination of the privilege to practice law without any promise of ultimate reinstatement. Office of Disciplinarv Counsel v. Keller, 506 A.2d 872 (Pa. 1986). There are obviously circumstances of disbarment which involve misconduct worse than that committed by Respondent; the question is not simply whether the conduct at issue is as troublesome as that in other disbarment cases, but whether it is troublesome enough, viewed in its own totality, that disbarment is the appropriate sanction and is not a disproportionate punishment. Office of Disciplinarv Counsel v Cappuccio, _ A.3d _ (Pa. 2012). The Board believes the particular misconduct in this case is so inherently dishonest and disturbing that disbarment is warranted. In recommending disbarment, we have not overlooked Respondent's lack of prior discipline, her expression of remorse, and her cooperation. We are aware of these mitigating factors and have considered them in our analysis of appropriate discipline. 10 v. RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the Respondent, Glori Alisha Kasner, be Disbarred from the practice of law retroactive to June 28, 2011. 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 Date: A"gnst 9, 2012 Board Members Cohen and McLemore dissent and pursuant to case law would recommend a lengthy suspension. Board Members Todd and Rosenberg recused, and Board Member Momjian did not participate in the adjudication. 11