In re Anonymous No. 22 D.B. 83

34 Pa. D. & C.3d 476
CourtSupreme Court of Pennsylvania
DecidedApril 2, 1985
DocketDisciplinary Board Docket No. 22 D.B. 83
StatusPublished

This text of 34 Pa. D. & C.3d 476 (In re Anonymous No. 22 D.B. 83) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Anonymous No. 22 D.B. 83, 34 Pa. D. & C.3d 476 (Pa. 1985).

Opinion

CURRAN, Member,

Pursuant to Rule 208(d) 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 petition for discipline.

I. HISTORY OF PROCEEDINGS

A petition for discipline by Chief Disciplinary Counsel in the above captioned matter was filed on June 6, 1984. The petition contained allegations that respondent had violated the following Disciplinary Rules:

D.R. 1-102(A)(4); D.R. 1-102(A)(6); D.R. 6-101(A)(3); D.R. 7-102(A)(4); D.R. 7-102(A)(5); D.R. 9-102(A); D.R. 9-102(B)(3); D.R. 9-102(B)(4); D.R. 1-102(A)(1) and D.R. 3-101(B).

Because there were allegations in the charges against respondent of financial mismanagement of clients’ funds, emergency relief was ordered under Pennsylvania Rule of Disciplinary Enforcement 208(f). Pursuant thereto, respondent was suspend[477]*477ed from the practice of law effective as of June 30, 1983, which suspension continues in effect.

The Disciplinary Counsel has urged that respondent be disbarred from the practice of law. On the other hand, respondent has requested that he be suspended effective the date of his emergency suspension and reinstated as of the date of this order.

In a 93 page opinion, hearing committee [ ] rendered a thorough discussion of the matter therein recommending that respondent be suspended from the practice of law to January 1, 1986. After careful consideration of the matter, it is the recommendation of this board that the bearing committee’s recommendation of suspension to January 1, 1986, is appropriate under the circumstances.

CHARGE I

Relative to the [A] case, respondent is charged with violation of the following mentioned Disciplinary Rules:

D.R. 1-102(A)(4). Misconduct

(A) A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

D.R. 1-102(A)(6). Misconduct

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

D.R. 6-101(A)(3). Failing to Act Competently

(3) Neglect a legal matter entrusted to him.

D.R. 7-102(A)(4). Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(4) Knowingly use perjured testimony or false evidence.

[478]*478D.R. 7-102(A)(5). Failing to Act Competently.

(5) Knowingly make a false statement of law or fact.

D.R. 9-102(A). Preserving Identity of Funds and Property of a Client.

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs ánd expenses, shall be deposited in one' or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

D.R. 9-102(B)(3). Preserving Identity of Funds and Property of a Client.

(B) A lawyer shall:

(3) Maintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

D.R. 9-102(B)(4). Preserving Identity of Funds and Property of a Client.

(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

Essentially, the [A] matter concerned a dispute with respect to an income tax refund check of $589. [A] alleged that he had instructed respondent to use this money to pay delinquent property taxes on real estate which he had owned. When this had not been done as was evident from [A] checking with the appropriate taxing bodies, [A] filed a complaint before the board.

We are pursuaded from examining the testimony that respondent’s behavior in the [A] matter violated [479]*479the above cited Disciplinary Rules. It is clear that respondent violated the instructions of his client in not paying the property taxes from the escrowed funds. Rather, respondent held those funds in his escrow account, and when he was requested to return them to [A], deducted from the escrowed amount, an amount he claimed due to him in attorney’s fees and then returned to [A] the sum of $214. It should also be noted that during the time the escrowed amount of $528.37 was held in respondent’s [B] account, the account was “out of trust” with respect to that amount. It should be noted, however, that we adopt the finding of the hearing committee that in his behavior in the [A] matter, respondent did not violate Disciplinary Rules 1-102(A)(4) and 1-102(A)(6) involving dishonest or deceitful conduct in relation to his responses to Disciplinary Counsel.

Due to an inadequate system of bookkeeping and commingling of client and personal funds, we do find violation of the Disciplinary Rules cited at the beginning of this count. We point out that no harm was suffered by [A] since he did in fact pay the taxes in question. However, there was certainly a possibility for harm due to the actions of respondent in violation of the Disciplinary Rules.

CHARGE II

Respondent is charged with violation of the following mentioned Disciplinary Rules:

DR. 1-102(A)(4). Misconduct

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

D.R. 9-102(A). Preserving Identity of Funds and Property of a Client.

[480]*480(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

D.R. 9-102(B)(4). Preserving Indentity of Funds and Property of a Client.

(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

Facts elicited by stipulation of counsel and direct evidence establish that in addition to being out of trust with respect to the aforementioned [B] account, respondent also maintained an account in [B] entitled “[Respondent], Esq., Attorney-at-law, Trustee Account”. Although respondent knew it to be improper, he used this account as a depository for both his personal funds and funds entrusted to him by clients. Evidence indicated that on many occasions the balance in this account was less than the total clients’ funds which was to have been on depository there. Thus, there were many occasions on which this account was “out of trust”.

However, in mitigation it must be noted that there was no evidence that any client had ever lost any funds or suffered pecuniary loss due to respondent’s improper handling of this escrow account.

COUNT III

Respondent is charged with violation of the following mentioned Disciplinary Rules:

D.R. 1-102(A)(4). Misconduct.

[481]

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Related

Office of Disciplinary Counsel v. Knepp
441 A.2d 1197 (Supreme Court of Pennsylvania, 1982)
Office of Disciplinary Counsel v. Lewis
426 A.2d 1138 (Supreme Court of Pennsylvania, 1981)

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