It was another busy year for the Disciplinary Board of the Supreme Court of Pennsylvania. Over the last year thirty-six attorneys were disbarred, fifty were suspended, five received public censure, and eleven were place on probation. The Disciplinary Board also issued eighty informal admonitions and public and private reprimands. The numbers for suspensions and disbarments were slightly increased over 2012.
Posts Tagged ‘Suspended’
Donald A. Bailey, a former US Congressman, and Auditor General of Pennsylvania, has been suspended from the practice of law for five years. According to the report and recommendation of the Disciplinary Board, Bailey has a history of a Private Reprimand in 2009 for violation of several rules of professional conduct, including a case in which he “used vulgar language” in response to a motion to dismiss, and a case in which he “engaged in a discourse on the competence of the court and persisted in attacking the court’s integrity.” Bailey also has a history of federal court sanctions resulting from allegations of fraud and judicial misconduct.
A matter in which federal court sanctions were levied is the basis for the current suspension. In 2007, Bailey filed two actions in the Middle District of Pennsylvania. Judge Malcolm Muir granted motions to dismiss and for summary judgment against Bailey’s clients in the first action, and Judge John E. Jones granted a motion to dismiss in the second action. The defendants then filed a motion for sanctions, requesting attorneys fees and costs. Magistrate Judge Timothy Rice recommended an award of $28,041.71 in attorneys fees and costs, and Judge Jones subsequently issued an order awarding an additional $19,240.19 in attorneys fees and costs. Bailey filed a motion for a rehearing en banc. In his motion for a rehearing, Bailey accused Judges Scirica, Jones, Conner, Kane, McLure, Muir, Rambo and Magistrate Judge Rice of judicial misconduct and favoritism. Bailey accused several judges of being part of a “highly unethical ‘clique.’”
At the disciplinary hearing, Judges Conner and Jones testified. Judges Conner and Jones testified they were not involved in any conspiracy to “get” Bailey, nor were they involved in any “clique,” with the purpose to “get” Bailey. Bailey testified he believed his accusations were true. The Disciplinary Board found Bailey violated RPC 4.1(a) (making a false statement of material fact in the course of representing a client); RPC 8.2(a) (making a statement the lawyer knows to be false or with reckless disregard to its truth or falsity concerning the qualifications or the integrity of a judge); and RPC 8.4(c) (engaging in conduct involving dishonesty, deceit, or misrepresentation). Bailey has announced his intention to continue to fight the suspension.
The obvious lesson from this case is when accusing a judge of impropriety, you had best have your proofs of the alleged impropriety lined-up. A practitioner who calls into question the integrity of a judge is likely to have a battle (with the judge among others) on his or her hands.
The Supreme Court of Pennsylvania, on the recommendation of the Disciplinary Board has suspended Montgomery County attorney Clayton William Boulware from the practice of law for a period of six months, followed by a period of probation for three years. Boulware was arrested on September 9, 2008, after attaching a camera to his shoe, and following a sixteen-year-old minor around an Acme grocery store taking pictures up her skirt when she stopped to shop. Boulware pleaded guilty of invasion of privacy, and was sentenced to three years probation. Included in this unusually salacious disciplinary report is the statement:
In July 2008, following a two-year dispute with his mortgage company and initiation of foreclosure proceedings, Respondent “gave up the property” to “get out from under [the mortgage].” He did so in favor of an intended living arrangement with a woman who was twenty years his junior and with whom he had been engaged in an “open relationship” involving a “swinging lifestyle” and sexual activity carried out “by filming one another and then looking at it.”
As the assistant district attorney handling the case stated: “Mr. Boulware’s conduct is very disturbing, inappropriate and certainly creepy.”
The Disciplinary Board, in this case of first impression, found its “task is to determine the appropriate level of discipline for an attorney who marred his spotless disciplinary record by engaging in a bizarre and aberrational course of conduct over a two-week period that culminated in his pleading guilty to two counts of invasion of privacy.” The Disciplinary Board made no finding regarding any Rules of Professional Conduct, but did find discipline was required. Attorneys must remember, whatever disturbing quirks they may have, if it can lead to arrest, it can lead to discipline.
Bucks County attorney, David H. Knight, admitted he accepted oral sex from a client in lieu of a $1,000 fee. Knight has been suspended from the practice of law for one year on consent (the Disciplinary Board also noted there was no written fee agreement in violation of Pa. R.P.C. 1.5(b)). Effective January 1, 2005, Pa. R.P.C. 1.8(j) states a lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced. According to the disciplinary report, there are no other reported cases in Pennsylvania involving a violation of Pa. R.P.C. 1.8(j). This appears to be the first published case in Pennsylvania involving discipline of an attorney for consensual sexual relations with a client.
The simple takeaway from this case is that unless you have a consensual relationship predating representation, do not become involved in a sexual relationship with a client.
Middlesex County, New Jersey, Superior Court Judge Carlia Brady admitted she lived with Jason Prontnicki, who pleaded guilty to receiving stolen prescription drug forms, and stands accused of violating his probation by robbing a pharmacy. Brady was sworn in on April, 5, 2013, and subsequently arrested on June 11, and charged with two counts of hindering the apprehension of a fugitive. Brady has pleaded not guilty, and has been suspended without pay. Brady’s attorneys have alleged Brady had no knowledge of her paramour’s illegal activities.
On June 19, 2013, William E. Buchko of Beaver County was disbarred retroactive to August 2, 2011. On November 8, 2010, Mr. Buchko entered a plea of guilty to an indictment which charged him with bank fraud. Mr. Buchko was sentenced to imprisonment of one day and supervised release for three years. Mr. Buchko aided a borrower in attempting to obtain a loan on certain real estate by use of false information to be given to the lender. The false documents consisted of a settlement sheet and a deed which falsely showed the borrower had already purchased the property. Mr. Buchko was temporarily suspended as a result of the criminal conviction.
Mr. Buchko was subsequently accused of commingling funds and misappropriating $5,520 of client funds. On January 13, 2012, Office of Disciplinary Counsel filed a Petition for Discipline against Mr. Buchko. The Petition charged Mr. Buchko with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of his criminal conviction of bank fraud. Mr. Buchko did not answer the Petition for Discipline, and the allegations set forth in the Petition were deemed admitted pursuant to Rule 208(b)(3), Pa.R.D.E.
A disciplinary hearing was held on June 11, 2012, and Mr. Buchko did not appear. At approximately 8:45 a.m. on June 11, 2012, Mr. Buchko left a message on the voice mail of Disciplinary Counsel, stating he would not be at the hearing because his granddaughter was having surgery and he needed to be with his family. Disciplinary Counsel spoke to Mr. Buchko later that morning, prior to the scheduled start of the hearing. Mr. Buchko informed Disciplinary Counsel he was aware of the hearing and made the choice not to appear. Mr. Buchko did not request a continuance. The Hearing Committee gave Mr. Buchko 15 days to submit evidence, and Mr. Buchko did not submit any evidence.
The Board noted similar criminal convictions had led to suspensions of five years. The Hearing Committee recommended a suspension of five years, to which the Disciplinary Counsel took exception. The Board agreed a bank fraud conviction and misappropriation of client funds in tandem with Mr. Buchko’s failure to participate in the disciplinary proceedings warranted disbarment.
The real lesson in this case is that not participating in disciplinary proceedings can significantly increase the discipline imposed. When faced with disciplinary proceedings, the ostrich approach does not work.
We have previously written about Philadelphia Court of Common Pleas Judge Thomas M. Nocella, who is facing disciplinary proceedings for allegedly, among other things, misrepresenting his legal qualifications, campaign finance violations, and failing to report lawsuits and “other legal problems.” The Pennsylvania Supreme Court previously suspended Judge Nocella, however, he has now been suspended without pay or benefits.
New York attorneys Shane Rios and Daniel Levy have been suspended from the practice of law for nine months. Mr. Rios and Mr. Levy admitted they advised their client she would have no viable case if she fell outside her church, as she had originally told them happened, but she would have a viable case if she fell across the street where there was a badly maintained sidewalk. When the lawyers then asked where the client had fallen, she told them across the street from the church. The panel of the First Judicial Department deciding the case found: “based on the record, it is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception.” The lawyers were charged with violating Rules of Professional Conduct 8.4(c)(dishonesty, fraud, deceit or misrepresentation), 8.4(h) (conduct that adversely reflects on fitness as an attorney), 1.1(b) (handling a matter the lawyer is not competent to handle).
The recent 30 month suspension upon consent of Damon K Roberts, Esquire (Former Philadelphia City Council candidate) is a cautionary tale for all attorneys regarding when representation begins. On August 7, 2009, Mr. Roberts signed a representation agreement with a client to represent her in negotiating a loan modification on a loan foreclosure action after the bank received default judgment on July 30, 2009. The client agreed to pay Mr. Roberts a $5,900 legal fee, and agreed to pay an initial $1,500 deposit. The written fee agreement stated “upon signing the agreement, you become my client.” Despite entering into the fee agreement, Mr. Roberts did not move to open the bank’s default judgment within 10 days, and did not inform the client that he would not file a motion until he received the $1,500 deposit. Mr. Roberts did not file a motion on behalf of his client until after he receives the $1,500 deposit in September of 2009. On September 24, 2009, Mr. Roberts filed a petition to open judgment and falsely alleged the default judgment was brought to his attention on September 4, 2009.
Despite the delay by Mr. Roberts, the court granted the petition to open and granted 20 days to file an answer to the bank’s complaint. Mr. Roberts filed a timely answer. On April 14, 2010, the bank filed a motion for summary judgment which Mr. Roberts received, but did not inform his client about. While the motion for summary judgment was pending the bank forwarded a loan modification package. Mr. Robert’s client completed the loan modification paperwork and gave it to him, but he did not submit the completed package to the bank. On May 24th 2010, the Court entered an order granting the bank’s summary judgment. On June 2, 2010, Mr. Roberts filed a memorandum of law in opposition to the motion for summary judgment. Due to Mr. Roberts’ lack of action on behalf of his client, the client was forced to enter into bankruptcy in order to save her home.
The disciplinary opinion also includes Mr. Roberts’ failure to comply with continuing legal education requirements, and his mishandling of an estate matter and other foreclosure matters. Mr. Roberts was criticized for instructing his paralegal not to inform a client that her home and been sold at sheriff sale until after the client had paid. Mr. Roberts did not take any action to set aside the sheriff sale and did not discuss with the client the options available to accomplish her objective to retain her home. The disciplinary opinion also relates anissue where Mr. Roberts took over representation from another attorney, contingency fee action, but did not inform the attorney when the matter had settled. Mr. Roberts was also guilty of commingling funds between his operating account and his IOLTA account.
The Disciplinary Board also listed as an aggravating factors, that Mr. Roberts was a defendant in “in a myriad of civil lawsuits and criminal actions.” The Disciplinary Board listed Mr. Roberts’ community action as a mitigating factor. The Disciplinary Board noted that “[t]he Supreme Court often imposes a suspension of one year and one day on attorneys, like Respondent, who have no record of discipline, but engage in serial neglect coupled with misrepresentation to clients.” The Disciplinary Board recommended that based upon the severity of Mr. Roberts’ disciplinary violations, a 30 month suspension was appropriate “to protect the public from this patently unfit practitioner.”
Most of the disciplinary violations by Mr. Roberts are self-evident. From a legal malpractice avoidance standpoint, the most interesting issue is perhaps the duty owed by Mr. Roberts after he had signed up his client, but before she paid her initial payment. Mr. Roberts had stated that he represented the client, and did not put any limiting language with respect to the necessity of the initial payment. Mr. Roberts did not take action within 10 days after the default judgment had been entered because he had not received the initial payment. Attorneys must be very careful of the duties they enter into prior to receiving payment, as well as the duties they owe even if clients do not pay them. Even though an attorney has not been paid, a duty may be owed.