In Re Iulo

766 A.2d 335, 564 Pa. 205, 2001 Pa. LEXIS 372
CourtSupreme Court of Pennsylvania
DecidedFebruary 20, 2001
Docket560 Disciplinary Docket 2
StatusPublished
Cited by48 cases

This text of 766 A.2d 335 (In Re Iulo) 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 Iulo, 766 A.2d 335, 564 Pa. 205, 2001 Pa. LEXIS 372 (Pa. 2001).

Opinions

OPINION

CAPPY, Justice.

This matter is before the court as a disciplinary enforcement proceeding. The specific context is a rule to show cause why respondent, Dennis J. lulo, should not be subject to reciprocal discipline due to his disbarment in New Jersey. Although we reject respondent’s argument that the Office of Disciplinary Counsel (hereinafter “ODC”) is precluded from seeking reciprocal discipline in this case, for the reasons set forth more fully below, we discharge the rule.

In 1972 respondent was admitted to practice law in New Jersey. An audit of respondent’s trust account revealed a shortfall of trust monies in June of 1981. Upon disclosure of the shortfall to the Disciplinary Review Board of New Jersey respondent was temporarily suspended from the practice of law in 1982. A criminal investigation of the trust shortfall led to respondent’s conviction on two counts of knowing misapplication of clients’ funds. N.J.S.A. 2C:21-15. In response to the conviction, the Supreme Court of New Jersey permanently disbarred respondent in 1989. Matter of Iulo, 115 N.J. 498, 559 A.2d 1349 (1989).

In 1990 respondent applied for permission to sit for the Pennsylvania Bar examination. The application was withdrawn prior to its consideration by the Pennsylvania Board of [209]*209Law Examiners, (hereinafter “PBLE”). Respondent again applied to the PBLE for permission to sit for the exam in 1992. After a formal hearing on the application, respondent was denied permission to sit for the exam. In 1995 respondent renewed his request for permission to sit for the bar examination. A hearing before a member of the PBLE was held on October 3, 1996 to review respondent’s application. After review by the entire Board, the Executive Director of the PBLE notified respondent that his application to sit for the examination had been approved under Pa.B.A.R. 203(a)(3). The subsection of the bar admission rule at issue provides as follows:

(2) absence of prior conduct by the applicant which in the opinion of the Board indicates character and general qualifications (other than scholastic) incompatible with the standards expected to be observed by members of the bar of the Commonwealth.

Pa.B.A.R. 203(b)(2).1

Subsequent to receiving approval of his application to sit, respondent passed the February 1999 bar examination. Respondent was admitted to the bar of Pennsylvania on July 8, 1999. On December 28, 1999, this court issued a rule to show cause why respondent should not be subject to reciprocal disbarment. Respondent filed an answer to the rule and requested oral argument before this court.

Argument having been heard, the matter is now ripe for disposition. As in all matters relating to attorney discipline, this court’s review is de novo. Office of Disciplinary Counsel v. Christie, 536 Pa. 394, 639 A.2d 782, 783 (1994); Pa.R.D.E. 208(d), (e)(5).

Respondent raises several objections to the imposition of reciprocal discipline. The initial objection is that the principles of res judicata and collateral estoppel bar ODC’s current action given the full exploration of respondent’s New Jersey [210]*210disbarment before the PBLE. Respondent asserts that once he was found to satisfy the character requirements of Pa. B.A.R. 203(b)(2), further action predicated on the New Jersey disbarment was precluded in Pennsylvania.

There must be a concurrence of four conditions in order for respondent to prevail on his res judicata claim. The doctrine of res judicata applies when there exists an identity of issues, an identity of causes of action, identity of persons and parties to the action, and identity of the quality or capacity of the parties suing or being sued. Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 345 A.2d 664, 668 (1975). Similarly, a collateral estoppel claim will succeed only with the concurrence of four conditions. Collateral estoppel applies when the issue decided in the prior adjudication was identical with the one presented in the later action, there was a final judgment on the merits, the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in the prior adjudication. Id. Neither res judicata nor collateral estoppel will apply in the absence of an identity of issues. Id.

Respondent finds an identity of issues by focusing on the question of his character as determined by the PBLE in ruling upon his application to sit for the Pennsylvania bar examination. PBLE was fully apprised of respondent’s transgressions and the measure of discipline imposed in New Jersey. Respondent asserts any further punitory action predicated on the New Jersey conduct was barred, once this information was fully explored by the PBLE and a determination made, that as of 1995 respondent met the character qualifications necessary to sit for the bar examination.

ODC rebuts this assertion, finding a distinction between fitness to sit for the bar exam, and the necessity of imposing reciprocal discipline as the result of an outstanding order of disbarment in another jurisdiction. ODC submits that the issue in a case involving reciprocal discipline is whether a [211]*211disciplinary adjudication in another jurisdiction requires the imposition of the same or similar discipline. It posits that this issue encompasses more than the limited question of the character of the individual attorney. (In fact, ODC conceded at oral argument that PBLE had correctly resolved the character issue.) A determination of reciprocal discipline focuses on the legitimate goals of the disciplinary systems in the original discipline state and the reciprocal state. The issue is whether disciplinary action is necessary in the reciprocal state to further the policy objectives of protecting the public from attorneys of questionable fitness, ensuring the integrity of the judicial system and deterrence of similar conduct by other similarly licensed attorneys in both jurisdictions.

On this point we must agree with ODC. There is no identity of issue between the decision of the PBLE to grant permission to sit for the bar examination and an action of ODC to request imposition of reciprocal discipline. A current determination that respondent possesses the requisite character to apply for admission to the bar of Pennsylvania may be relevant to a determination of whether or not in this case reciprocal discipline is appropriate, but is not preclusive to the question itself. Accordingly, we find no merit to respondent’s claim that once his character was found sufficient to meet the general requirement of Pa.B.A.R. 203(b)(2), ODC was collaterally estopped or barred by res judicata from presenting a petition for reciprocal discipline.

Respondent also argues reciprocal discipline is barred in this case by laches. Laches is an equitable doctrine which precludes a party from pursuing a complaint when it is guilty of a lack of diligence in asserting its rights, such that the passage of time has caused prejudice to the opposing party. Stilp v. Hafer, 553 Pa. 128,

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Bluebook (online)
766 A.2d 335, 564 Pa. 205, 2001 Pa. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-iulo-pa-2001.