In re Anonymous No. 28 D.B. 85

39 Pa. D. & C.3d 88
CourtSupreme Court of Pennsylvania
DecidedMay 22, 1986
DocketDisciplinary Board Docket No. 28 D.B. 85
StatusPublished

This text of 39 Pa. D. & C.3d 88 (In re Anonymous No. 28 D.B. 85) 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. 28 D.B. 85, 39 Pa. D. & C.3d 88 (Pa. 1986).

Opinion

TUMOLO, Member,

Pursuant to Rule 208(d) of the Pennsylvania Rules of the Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above petition for discipline.

I. HISTORY OF PROCEEDINGS

This petition for discipline was filed on April 10, 1985, alleging violations of:

a. D.R. 1-102(A)(4), dealing with conduct involving dishonesty, fraud, deceit, or misrepresentation;

b. D.R. 1-102(A)(5), prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice;

c. D.R. 1-102(A)(6), dealing with conduct that adversely reflects on an attorney’s fitness to practice law; and,

d. D.R. 7-106(A), prohibiting an attorney from disregarding a ruling of a tribunal made in the course of a proceeding.

The matter was assigned to hearing committee [ ]. The committee held a prehearing conference on May 24, 1985, to determine the admissibility of a plea of nolo contendere to a single count of uttering a forged instrument in the State of [Z]. The issue raised by respondent at the prehearing conference was that Rule 214 of the Pennsylvania Rules of Disciplinary Enforcement provides as follows:

“Rule 214. Attorneys convicted of crimes.

a. Upon the filing with the Supreme Court of a certified copy of an. order demonstrating that an attorney has been convicted of a crime which is punishable by imprisonment for one year or upward in this or any other jurisdiction . . . the court may enter [90]*90an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.

b. A certificate of conviction of an attorney for such a crime shall be conclusive evidence of the commission of the crime in any disciplinary proceeding instituted against the attorney based upon the conviction.” (Emphasis added.) However, in [Z] a nolo contendere plea does not result in an adjudication of guilt, and accordingly, there is no conviction or final judgment. Thus, this respondent was placed on a period of probation without a judgment of guilt. Accordingly, the Supreme Court of Pennsylvania did not enter an order immediately suspending respondent. And respondent raised the issue of whether his plea of nolo contendere in [Z] was- admissible for any purpose in the disciplinary proceeding in Pennsylvania. The hearing committee admitted the plea of nolo contendere, but found as a matter of law that it was not conclusive evidence of a violation of the Code of Professional Responsibility.

The hearing committee conducted a formal hearing on the disciplinary charges on July 30, 1985. Nearly all' of their findings of fact and those hereinafter set forth are the result of a stipulation between the parties. This was an important consideration for the board since the underlying offense related to the plea of nolo contendere is therefore stipulated to.

After the hearing committee found a prima facie case against respondent for violation of the above-cited disciplinary rules, he presented the testimony of two attorneys during the dispositional stage of the hearing which was directed to the type of discipline [91]*91to be imposed. These colleagues in the [ ] County Bar Association testified as to respondent’s community service and good character.

At the close of proceedings, both petitioner and respondent agreed that some form of public discipline was merited. Petitioner recommended no less than a one-year suspension, while respondent argued that under all of the facts, a public censure was appropriate. The hearing committee recommended to the Disciplinary Board that respondent be suspended for the period of six months.

Respondent filed a brief on exceptions and requested oral argument. In those exceptions, respondent found error in the committee’s admission into evidence of respondent’s plea of nolo .contendere since no adjudication of guilt in the [Z] criminal proceeding was ever entered. Respondent further asserted that it was error in the portion of the proceeding directed to the type of discipline to be imposed to have admitted into evidence a.letter from1 respondent to Judge [A], who presided over the [Z] criminal proceeding (Petitioner’s Exhibit 16). And finally, respondent charged error in admitting into the record two previous informal admonitions given to and accepted by respondent pursuant to the informal administration of complaints under the Pennsylvania Rules of Disciplinary Enforcement and the Rules of the Disciplinary Board.

II. FINDINGS OF FACT

1. Petitioner, whose principal office is located at 300 North Second Street, Harrisburg, Pa., is invest: ed, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereafter Pa. R.D.E.), with the power and the duty to investigate all matters involving alleged misconduct of an attorney ad[92]*92mitted 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, [ ], Esq., was born in 1951, admitted to practice law in the Commonwealth of Pennsylvania in 1977, and his office is located at [ ]•

3. In association with [B], an attorney practicing in [C], [Z], respondent represented the interests of the trustee and beneficiaries of a recreation lease trust in litigation instituted in the [ ] County, [Z] Circuit Court in about 1981, involving the validity of a condominium recreation lease and the liability of the condominium association for unpaid rent.

a. Both attorney [B] and respondent were counsel of record for an original defendant, the trustee who was acting on behalf of the aforementioned beneficiaries in administering the recreation lease.

b. Respondent became entitled to represent the investors pro hac vice in the [Z] court through his association with [B],

c. A small minority of the trust beneficiaries sided with plaintiffs in attempting to have the lease declared invalid.

4. A decision favorable to the client(s) of respondent and [B] was subseqently entered by the circuit court, which resulted in a declaration that the lease was enforceable and in an order on defendant’s countercliam that the condominium associ-atipn pay rent arrearages and interest.

5. The circuit court decision was unsuccessfully appealed by the condominium association.

a. In this regard, a mandate from the [Z] appellate court was forwarded to the circuit court in early December, 1983, rendering the judgment final.

[93]*93b. On or about January 31, 1984, the condominium association deposited an amount in excess of $190,000 into the circuit court registry in satisfaction of the judgment plus interest. Following said deposit, the record was marked satisfied.

c. As of January 31, 1984, the circuit court still had pending before it various unresolved motions from plaintiff(s) and defendant(s) concerning distribution of the judgment proceeds and collection of additional rent from the plaintiff(s).

6.

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