No. 1507, Disciplinary Docket No. 3

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IN THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. No. 1507 Disciplinary Docket No. 3 104 DB 2009 Attorney Registration No. 57360 ROBERT TOLAND, II, (Chester County) Respondent ORDER PER CURIAM AND NOW, this 20th day of November, 2014, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated September 3, 2014, the Joint Petition in Support of Discipline on Consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ORDERED that Robert Toland, II, is suspended on consent from the Bar of this Commonwealth for a period of three years retroactive to November 30, 2007, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. A True CQ.PY Patricia Nicola As Of 11/20/2014 ~.l1!h,&J Attest: Chief Cie Supreme Court of Pennsylvania BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL Petitioner No. 1507 Disciplinary Docket No. 3 No. 104 DB 2009 v. Attorney Registration No. 57360 ROBERT TOLAND, II Respondent (Chester County) RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA The Three-Member Panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members P. Brennan Hart, R. Burke McLemore, Jr., and Lawrence M. Kelly, has reviewed the Joint Petition in Support of Discipline on Consent filed in the above-captioned matter on August 4, 2014. The Panel approves the Joint Petition consenting to a three year suspension retroactive to November 30, 2007 and recommends to the Supreme Court of Pennsylvania that the attached Petition be granted. The Panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the Petition. P. Brennan Hart, Panel Chair The Disciplinary Board of the Supreme Court of Pennsylvania Date: BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA No. ISD7 OFFICE OF DISCIPLINARY COUNSEL, Petitioner /Y"b 3 No. 104 DB 2009 v. Atty. Reg. No. 57360 ROBERT TOLAND, II (Chester County) Respondent JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215 (d) Petitioner, the Office of Counsel Disciplinary (hereinafter, "ODC") by Paul J. Killion, Chief Disciplinary Counsel, Bruce and Respondent, H. Bikin, Disciplinary Robert Toland II, (hereinafter, Counsel, and "Respondent"), respectfully petition the Disciplinary Board in support of discipline on Disciplinary consent, pursuant to Pennsylvania ( "Pa. R. D. E.") Enforcement 215 (d) , Rule of and in support thereof state: ODC, 1. whose principal Pennsylvania Judicial Center, P.O. Avenue/ invested, duty to Box pursuant 62485, to investigate office situated at Suite 2700, 207, matters the 601 Commonwealth Harrisburg, Pa.R.D.E. all is Pennsylvania, with the involving power is and alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all Fll ED AUG -4 2014 Office of tho Gocrolary The Disciplinary Board of tht: Suproms Court ct Perm::;ylvamu disciplinary proceedings brought in accordance 'with the various provisions of the aforesaid Enforcement Rules. 2. 8' Respondent, and 1960, Robert Toland I I, was admitted to Commonwealth on December 8, 1989. is currently suspended. was born on March practice law in the Respondent's law license Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court. 3. consents Respondent's affidavit stating, to the recommended discipline inter alia, he is attached hereto as Exhibit A. SPECIFIC FACTUAL ALLEGATIONS ADMITTED Criminal History 4. Driving Respondent Under Accelerated was the arrested Influence Rehabilitative in and 1982 ("DUI") Disposition and (ARD) for 1992 received in both matters. 5. On February 17, 1998 Respondent pled guilty to DUI in a negotiated plea. 6. On December 19, 2002, Respondent was arrested and charged with Driving while having a blood alcohol level of .08% (now repealed) pursuant to 75 Pa C.S. offenses. The other offenses 2 were § nolle 3731 and other prossed and Respondent pled guilty alcohol level of § .08% to Driving while (now repealed) having a blood pursuant to 75 Pa C.S. 3731. 7. 2 003, Pursuant to Respondent's guilty plea on April Respondent was sentenced to and 1 year of probation, $300 fine and a two (2) days 9, in prison 80 hours of community service, variety of assessments and treatments a for possible alcohol-related issues. 8. on Subsequently, September 14, 2 0 0 6, convicted on October 24, CP-23-CR-0008633-2007 Respondent in Delaware Respondent of DUI: fined $2,500.00. and attending was arrested County, 2008 in Com. v. Highest Offense, pursuant to 75 Pa C.S. 9. was 12 DUI He was of Alcohol, 1st (c) sentenced to Pa. a Robert Toland II, Rate 3802 for § to 24 months and Other conditions of his sentence included successfully completing Alcohol Highway Safety School and undergoing Court Reporting Network (CRN) Evaluation. 10. Respondent began his prison sentence on January 17, 2009. 11. On January 17, 2011, Respondent was paroled from prison and placed on probation for three years. 3 12. On September probation from conviction for 26, imprisonment DUI, Delaware County, for Respondent Pa. while 2011' was parole October his on 24, arrested On October 7, 2011, for and 2008 DUI in he was returned to prison for violation of his probation for the October 24, 2008 conviction. 13. was On February 28, convicted in Com. 0006941-2011 of DUI: 75 Pa C.S. 14. months 3802 § a February 28, undergo Robert Toland II, Highest Rate of Alcohol, was maximum of sentenced 36 to months 2012 conviction. psychiatric evaluation, v. Respondent pled guilty and CP-23-CR- 3rd Offense, (c) Respondent and 2012, minimum of confinement Further, evaluation, a for 14 his Respondent was to undergo psychological pay a $300 mandatory cost assessed pursuant to the Substance Education and Demand Reduction Fund, comply with general DUI Rules and Regulations governing probation and parole, continue and any $2,500.00, Respondent consecutive comply with substance directives abuse of programs, the pay a Court to fine of and be in the probation system for two years. was also probation sentenced to follow 4 to five this ( 5) sentence years of for the violation of his probation from the October 24, 2008 conviction. 15. On January 24, 2013, Respondent was paroled from prison and placed on probation. 16. as a In 1999, result of a Respondent received a private reprimand 1997 conviction for driving under the influence of alcohol. 17. year On October 22, 2004, Respondent stayed suspension and was received a two placed on probation as a result of Respondent's April 9, 2003 conviction. 18. One of the conditions of the Respondent's probation was that he "shall abstain from using alcohol or any other mind altering chemical." 19. September On several occasions 2006, Respondent 8, between June failed to 3, meet 2005, and with the Board-appointed Sobriety Monitor and appeared to be under the influence of alcohol or other mind altering drug during a telephone conversation with the Board-appointed Monitor. These were specific violations of the terms and conditions of Respondent's probation. 20. As a result of Respondent's violations of the terms of his probation, Respondent's disciplinary probation was revoked on consent and he was suspended for one year 5 and one day by Order of the Supreme Court of Pennsylvania, November 28, 2006. The term of that discipline ended on November 29, 2007. 21. Respondent has not filed Petition a for Reinstatement from the November 28, 2006 suspension and his law license remains suspended. 22 . This Consent Petit ion concerns Respondent' s 2 012 conviction for DUI. February 28, 2013. 2012. He was sentenced to 12-24 months on Respondent was paroled on January 24, Disciplinary matter C2-08-1121 was instituted as a result of the 2012 conviction. 23. gotten Respondent believes has finally "hit bottom" and into recovery. He has been sober and has not consumed any alcohol since he was imprisoned on October 7, 2011, more Respondent than has two not years ago. consumed More any alcohol significantly, during the more than one year since his release from prison. 24. Respondent Anonymous (AA) attends meetings in Alcoholics regularly and has a sponsor in the program (Jim B.) who has more than 30 years of sobriety. 25. of the school. Respondent was one of the Villanova He Environmental clerked for a founding editors Law Journal federal 6 five judge, while the in law Honorable Herbert Hutton, J. after graduation and then practiced environmental and product liability law at the Philadelphia law firm Appellate of White Practice and Williams Group. where Respondent he founded subsequently the left White and Williams with several other partners to form the law firm Campbell, Campbell, Edwards & Conroy where he was a member of the Board of Directors. practice allowed him to become His focus on appellate a successful appellate practitioner in Pennsylvania. 26. Respondent believes his activities while in prison demonstrate his commitment to the law and using the law to help others. (the George W. While in the Delaware County Prison Hill Correctional Facility), Respondent worked in the law library and helped other inmates with a variety of legal matters, ranging from the criminal charges they were facing to domestic relations disputes. He helped one inmate with an immigration/deportation matter. 27. inmates, Respondent including wrote The several Phases of a booklets Criminal to Trial assist (2012) and The Pennsylvania Sentencing Guidelines: A How-to Manual (2012). Respondent tutored inmates seeking their GED while in prison and completed the Thresholds program. 7 (Copies of the booklets and certificates are attached hereto as Exhibit B.) 28. After being transferred to the State Correctional (SCI System Chester) , completed the Program" Respondent was "Six Month Inpatient- enrolled Therapeutic in and Community (by Gaudenzia) which is designed to assist inmates remain clean and sober when released from prison. (A copy of the certificate is attached as Exhibit C.) 29. 2013, Since being Respondent has released from in invested significant time other alcoholics get into sobriety. Respondent prison engaged in a January, in helping On February 11, one-on-one intervention 2014, (referred to as a "twelfth step" in AA parlance) with an alcoholic who was also an attorney licensed in Pennsylvania - to get her into an in-patient treatment facility. He continues working with her family and the result at the present time in not clear. 30. several year; Prior to his 2011 DUI, Respondent had (a) been to in-patient (b) facilities for more than a engaged in several years of one-on-one and group treatment disease treatment with with treatments other a attorneys psychiatrist (Richard F. Limoges, 8 suffering who M.D.) from specializes (c) addictive in such been in prison and undergone a program of recovery from alcohol addiction; and (d) regularly attempts because to escape Respondent addiction Respondent the of "hit he these did these was effective and was not yet he learned a great deal programs not of alcohol bottom" Nonetheless, from regrets grip had not ready for recovery. about None attended AA meetings. counseling. and reach his bottom years earlier. 31. By way of further mitigation, Respondent believes that he has learned a great deal from his time in prison and from his staying sober. subsequent efforts at rehabilitation and He believes the lessons he has learned will aid him in avoiding further problems with alcohol and that he will not engage in this conduct in the future. SPECIFIC RULES OF PROFESSIONAL CONDUCT AND RULES OF DISCIPLINARY ENFORCEMENT VIOLATED 32. 27, By his conduct alleged in paragraphs 4 through Respondent violated the following Rule of Professional Conduct and Rule of Disciplinary Enforcement: RPC 8.4(b) and Pa. R. D. E. 203(b) (l). SPECIFIC RECOMMENDATION FOR DISCIPLINE OF ROBERT TOLAND II As with conviction, all matters predicated on a criminal "the issue before the Board is the extent of 9 discipline to be imposed on Disciplinary Counsel v. Eilberg, As the Court Troback, the wrote 477 Pa. Court's in 318, duty to Office 320, 441 A.2d 1193 of the (Pa., Disciplinary 383 A.2d 952 "weigh Office Respondent." (Pa., impact of of 1982). Counsel 1978), the v. it is conviction upon the measure of discipline." Respondent herein received a was stayed on October 22, 2004, two year suspension that as a result of Respondent's April 9, 2003 conviction for DUI. of stayed that another DUI suspension, violation Prior to the expiration Respondent on September was 14, arrested 2006, for in Delaware County, Pa. for which he was convicted on October 24, 2008. Pursuant Respondent's he was to disciplinary action taken as September 14, convicted on 2006 October arrest 24, a for DUI result of (for which Respondent's 2008)' disciplinary probation was revoked and he was suspended for one year and Pennsylvania, one day November by Order 2 8, not license once filed remains more and a Petition suspended. charged with the for Reinstatement 10 in was 2011, Court term However, 2007. Respondent DUI Supreme The 2006. discipline ended on November 29, has of of that Respondent and then while of his law arrested still on probation from his 2008 conviction. He was convicted in 2012 and in prison until January 24, 2013. In Office of Disciplinary Counsel v. Kimberly Neeb, 68 DB 2006 (Pa. within a 2006), Neeb was arrested on two occasions six month period of time and charged with DUI. She was convicted of both DUI charges and sentenced to one year supervised probation for the first conviction and six months of for the Intermediate second Punishment of supervised probation When conviction. probation on multiple occasions, Need violated her she was sentenced to serve six months imprisonment. The Supreme Court accepted the Joint Petition on Consent and recommendation of the Disciplinary Board based thereon and imposed a suspension of one year and one day. The October 13, 2006 Order of suspension was made retroactive to June 14, 2006. In Office of Disciplinary Counsel v. Gary C. Hoicker, 53 DB 2009 (Pa. , Respondent 2010)' was convicted in Delaware County of driving under the influence of alcohol and a controlled endangering another Respondent's second substance person. conviction (cocaine) The for DUI DUI. and recklessly conviction was Respondent was also convicted in Montgomery County of the summary offense 11 of harassment. Respondent had a history of prior discipline consisting of a private reprimand and two years' probation with sobriety conditions for his first DUI conviction with Respondent successfully completing probation. the Respondent received Braun mitigation in connection with his prior discipline for DUI and established through an expert report that the Braun mitigation should be extended to this conviction for DUI as well. suspension, Respondent received a two year stayed in full with probation for 2 1/2 years with conditions. In Office Johnston, of Disciplinary 169 DB 2002, 69 DB 200, Counsel v. Mark 89 DB 2003 & Eugene (Pa. 2005), Johnston was arrested on two occasions within a six month period of time and charged with DUI. arrested on a years. third DUI He was subsequently charge within the following two Three separate Petitions for Discipline were filed and by Order of the Disciplinary Board dated December 2, 2003, the three Petitions for Discipline were consolidated. Of the nine separate charges of contained in the three Petitions, professional five involved convictions of crimes and/or related summary offenses, violation of probation, one misconduct involved a one involved a false application for the Accelerated Rehabilitative Disposition program, and 12 two involved failure to report criminal convictions to the Disciplinary Board. Respondent filed Answers to all of the Petitions. Johnston presented no mitigating factors, the fact he Johnston had no testified history of much that attributable to alcoholism, prior of testimony on the discipline. While misconduct his was he failed to corroborate this representation with other evidence, expert other than subject. nor did he offer any The Board found that Johnston did not establish that his alcoholism caused his misconduct, and that he was not Office of Disciplinary Counsel v. entitled Braun, to mitigation. 553 A.2d 894 (Pa. 1989). "Respondent's multiple convictions and related actions can only be described as egregious in quantity and quality. Respondent has demonstrated a blatant disregard for the laws of this Commonwealth and the rules and regulations of the legal profession.• sanction that will "There is a clear need to impose a protect integrity of the bar. • Mark Eugene Johnston, (Pa. 2005). the public and maintain the Office of Disciplinary Counsel v. 160 DB 2002, 69 DB 2003 & 89 DB 2003 Although the Disciplinary Board recommended a 13 two year suspension, the Court imposed a three year suspension. The above cited disciplinary matters are the most similar to the instant case in that there was a history of repetitive DUI convictions over a short or overlapping time frame. Respondent Toland also had overlapping convictions for DUI and had discipline imposed for the first of those convictions. (from 2006) discipline That while for initial the the suspension nature remains and extent second conviction is of in place Respondent's being considered herein. Respondent's law license has been suspended for over seven ( 7) years, well cases cited above. in excess of any of the comparable Some of that time Respondent has spent in prison as a result of his DUI convictions. was released from prison on January 24, 2013, However, he and has been "clean and sober• for over a year since his release. Though Respondent has not offered any Braun mitigation evidence, he has provided substantial indication though his actions while in prison and subsequent to his release that he not actions only that appreciates led to the his nature and suspension, 14 quality but has of his taken affirmative steps to wrest control of his life from his addiction to alcohol. WHEREFORE, Joint Petitioners respectfully pray that three year your Honorable Board: a. Approve this Petition; and b. File a recommendation suspension, 2007, and retroactive this Petition for a to November with the Supreme Court of Pennsylvania. Respectfully and jointly submitted, OFFICE OF DISCIPLINARY COUNSEL PAUL J. KILLION ~· linary Counsel \ Date: By Robert Toland, II Respondent Date: By Counsel 15 30, BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, Petitioner No. 104 DB 2009 v. Atty. Reg. No. 57360 ROBERT TOLAND, II (Chester County) Respondent VERIFICATION The Petition P.A.R.D.E. statements In Support 215 (d) contained in the of Discipline on foregoing Joint Consent Pursuant to are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Bruce H. Bikin Date: Toland, II Respondent Date: IJ (ZJ-t/i'-1 Samuel C. Stretton, Esqui Counsel for Respondent BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, Petitioner No. 104 DB 2009 v. Atty. Reg. No. 57360 ROBERT TOLAND, II Respondent (Chester County) AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E. Respondent, Robert Toland, consents to the imposition of years, retroactive to Respondent in the a hereby states that he suspension of 30, November recommended by Petitioner, and II, three 2007, (3) jointly Office of Disciplinary Counsel, Petition Joint in Support of Discipline on Consent and further states that: 1. he is His consent not being is freely and voluntarily rendered; subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has consulted with Samuel C. Stretton, Esquire, in connection with the decision to consent to discipline; 2. He disciplinary is aware that proceeding allegations that at there is No. 104 presently pending DB 2009 a involving he has been guilty of misconduct as set forth in the Joint Petition; 3. He acknowledges that the material facts set forth in the Joint Petition are true; and 4. He consents because he knows that if the charges pending at No. 104 DB 2013 continued to be prosecuted, \ Robert Toland, II, Esquire Respondent Sworn to and subscribed before me this day of d I ----- q~..~t{' ' 2014. ~ck~~~ COMMONWEALfH OF PENNSYLVANIA -· Notarial Seal ryl L. McMenamin, Notary Public est Chester Boro, Chester County Commission Expires June 21, 2016 l~MifR;"PifN"'fi§VLVANIA ASSOCIA110N OF NOTARlES 2 he

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