In re Anonymous No. 49 D.B. 80

25 Pa. D. & C.3d 13
CourtSupreme Court of Pennsylvania
DecidedSeptember 29, 1982
DocketDisciplinary Board Docket no. 49 D.B. 80
StatusPublished

This text of 25 Pa. D. & C.3d 13 (In re Anonymous No. 49 D.B. 80) 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. 49 D.B. 80, 25 Pa. D. & C.3d 13 (Pa. 1982).

Opinion

PEARLSTINE, Vice Chairman,

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.

On September 24, 1980, a petition for discipline was filed by the Office of Disciplinary Counsel, charging respondent with violating eight counts of The Disciplinary Rules of the Code of Professional Responsibility, in that:

1. He simulated the signature of a deceased client in order to effectuate a settlement with a casualty insurance carrier for litigation following an accident to the deceased claimant.

2. Misrepresented to the insurance company that the proceeds of the lawsuit were an asset of an inter-vivos trust and not an asset of decedent’s estate.

3. Backdated a purported amendment to the trust agreement and simulated the signature of decedent to that document dated after the date of death of the deceased settlor.

4. Procured letters of administration and caused his client to falsely swear that decedent died intestate, when, in fact, he knew a will, which he had prepared, was in existence.

No answer was filed by respondent, but counsel entered an appearance on his behalf.

The matter was referred to hearing committee [ ] ([ ] County).

[15]*15Hearings were held on June 9, June 10, June 23, and July 9, 1981. All in all, five volumes of testimony, composed of 642 pages, with a record of 32 written exhibits, were heard, examined, and considered by the hearing committee, consisting of [ ]• [ ] was unavailable for the first hearing, and the parties consented to have the matter heard by the two remaining hearing committee members.

Counsel briefed the matter, and on February 9, 1982, they presented oral argument on the merits.

The hearing committee concluded that respondent had violated the following Disciplinary Rules:

D.R. 1-102(A)(6) in that his conduct adversely reflected on respondent’s fitness to practice law.

D.R. 7-102(A)(4) in that he knowingly used false evidence.

D.R. 7-102(A)(6) in that he created evidence known to be or which was obviously false.

D.R. 1-102(A)(4) in that his conduct involved dishonesty, fraud, deceit, or misrepresentation.

D.R. 1-102(A)(6) in that his conduct adversely reflected on respondent’s fitness to practice law.

D.R. 7-102(A)(3) in that respondent’s conduct concealed or knowingly failed to disclose that which is required by law to be revealed.

D.R. 7-102(A)(5) in that respondent knowingly made a false statement of law or fact.

With respect to the signing of the [A] release, the hearing committee concluded that the Disciplinary Counsel had not sustained its charge that respondent violated D.R. 1-102(A)(6), D.R. 7-102(A)(4), and D.R. 7-102(A)(6), and these charges were dismissed.

With respect to the charge that respondent misrepresented to the insurance company that the proceeds of the [A] claim were an asset of the [A] intervivos trust, the hearing committee concluded that [16]*16the Disciplinary Counsel had not sustained its charge that this conduct violated D.R. 1-102(A)(4) and D.R. 7-102(A)(5), and recommended that both of these charges be dismissed.

With respect to the backdated trust amendment, the hearing committee concluded that the Disciplinary Counsel had not sustained its charge that respondent violated D.R. 1-102(A)(3), and therefore recommended the dismissal of this charge.

With respect to the charge that respondent’s failure to probate the will and to file state inheritance tax returns, the hearing committee concluded that this did not constitute a violation of D.R. 6-101(A)(3), and therefore recommended that it be dismissed.

The report of the hearing committee was filed on April 19, 1982, and recommended that respondent receive an informal admonition.

Petitioner’s brief on exceptions was filed on May 10, 1982, and respondent’s brief on exceptions was filed on May 21, 1982, and an oral argument panel, composed of Mary Bell Hammerman (Chairperson), Raymond Pearlstine and Robert C. Daniels, was designated to hear oral argument, but in view of injury received by Mary Bell Hammerman, leaving her incapacitated, Pasco L. Schiavo was substituted, and Raymond Pearlstine was designated as Chairman. Argument was heard in the [ ] Office of The Disciplinary Board on August 17, 1982.

II. STATEMENT OF FACTS.

The board has been favored by a very complete and sensitive report of the hearing committee, portions of which are set forth below because they accurately set forth the factual situation and raise important issues with respect to the type of disci[17]*17pline to be imposed in cases of this nature, which must be addressed.

Respondent, [ ], graduated from the University of [ ] with a Juris Doctor Degree in 1956, and a Doctorate from the University of [ ] in 1962, and with an LL.M. from [ ] University Law School. He was a Sterling Fellow in 1964, and was admitted to practice before the Supreme Court of Pennsylvania in 1972.

In 1966, he was made an Associate Professor at L ] Law School, and in 1971 he became a Full Professor. He has taught trusts and estates, legal ethics, equity, insurance, comparative law and remedies. He now teaches contracts, comparative law and remedies, and domestic relations.

In mid-March of 1976, [A], approximately 84 years of age, was in the hospital suffering as a result of an accident when he fell in front of the Acme Markets property. Respondent was retained by [A] to represent him in his claim for personal injuries, and also retained to draft his will and an inter-vivos trust. The trust was executed on March 31, 1976, and the will was executed on April 7, 1976.

[A] died on April 26, 1978, and respondent was aware of his death when it occurred. Respondent intentionally failed to notify counsel for the insurance company representing Acme Markets that [A] was deceased. A settlement was reached for $15,000, settled by [B], Esq., who was brought into the case by respondent because he had personal injury experience.

On May 12, 1976, respondent notified Acme Markets’ liability insurance carrier, the [C] Insurance Company, of his representation of [A], and notified that he had alien for attorney’s fees and services in the matter. On September 16, 1977, [B] and respondent filed suit in the Court of Common Pleas of [18]*18[ ] County. On October 25, 1978, a Claims Agent, [D], discovered that [A] had died on April 26, 1978. In November of 1978, [D] and [B] agreed to settle the case for $15,000. On November 22, 1978, pursuant to that agreement, [D] sent to [B] a letter enclosing a blank release form, which he requested that he have [A] read and sign. This was an error on the part of [D], in that he sent it without realizing at the time that [A] was deceased. After receiving the release, LB] communicated with respondent, and he was advised that [A] died in April of 1978. LB] advised respondent that the normal procedure would be to probate decedent’s will, raise an estate, and substitute the executor as personal representative. Respondent advised [B] that this was not necessary because the lawsuit was an asset of the trust.

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