Office of Disciplinary Counsel v. Bentivegna

70 Pa. D. & C.4th 202, 2004 Pa. LEXIS 3407
CourtSupreme Court of Pennsylvania
DecidedApril 16, 2004
DocketDisciplinary Board Docket no. 156 D.B. 2002
StatusPublished

This text of 70 Pa. D. & C.4th 202 (Office of Disciplinary Counsel v. Bentivegna) 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
Office of Disciplinary Counsel v. Bentivegna, 70 Pa. D. & C.4th 202, 2004 Pa. LEXIS 3407 (Pa. 2004).

Opinion

O’CONNOR, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of 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-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 19, 2002, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Antoinette M. J. Bentivegna, respondent. The petition charged respondent with multiple violations of the Rules of Professional Conduct arising out of her actions in four bankruptcy matters.

A disciplinary hearing was held on April 29, 2003, before Hearing Committee 1.17 comprised of Chair Gilbert J. Scutti, Esquire, and Members Heather Gallagher Tucker, Esquire and Martin N. Lisman, Esquire. Stuart L. Haimowitz, Esquire, represented respondent. Petitioner presented the testimony of four witnesses and in[204]*204troduced joint stipulations of law and fact and 51 exhibits. Respondent offered her own testimony.

The Hearing Committee filed a report on November 6, 2003, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline and recommending that respondent be suspended for a period of six months followed by three years of probation with a practice monitor.

Petitioner filed a brief on exceptions on November 24, 2003, urging that respondent be suspended for a term of not less than one year and one day. No opposing exceptions were filed by respondent.

This matter was adjudicated by the Disciplinary Board at the meeting of January 14, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provision of said Rules of Disciplinary Enforcement.

(2) Respondent was born in 1941 and was admitted to practice law in the Commonwealth of Pennsylvania in 1991. Her office is located at 70 W. Oakland Avenue, Suite 314, P.O. Box 942, Doylestown, PA 18901. Re[205]*205spondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has a history of discipline consisting of a private reprimand administered in February of2002. The misconduct leading to the reprimand involved two bankruptcy matters. In the first, respondent made a misrepresentation to the bankruptcy judge and in the second matter respondent failed to appear at a bankruptcy court hearing.

Charge I — Suzanne Brown Bankruptcy Matter

(4) On November 28, 1995, Mrs. Suzanne Brown, acting pro se, filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(5) Respondent was not counsel for Mrs. Brown.

(6) In 1996, respondent represented Mrs. Brown’s husband, R. Warren Brown, in a bankruptcy court case, which was closed in November 1996.

(7) Respondent’s representation of Mr. Brown consisted of providing legal advice to Mr. Brown as to his options following the issuance of an order by the bankruptcy court dated September 12, 1996, barring Mr. Brown from filing any future bankruptcy petitions for 180 days from the date of dismissal of the petition.

(8) Respondent was aware that once Mr. Brown’s bankruptcy case was dismissed he was barred for 180 days from filing another bankruptcy petition.

(9) On January 13, 1997, Comnet Mortgage Services filed a motion for relief from the automatic stay in Mrs. Brown’s bankruptcy matter.

[206]*206(10) Mr. Brown contacted respondent to seek her assistance in responding to the motion filed by Comnet, which was to be heard by the bankruptcy court on Feb-ruaiy 13, 1997.

(11) Respondent agreed to contact counsel for Com-net.

(12) On February 12,1997, respondent had a telephone conversation with Attorney Michael S. Dinney, Comnet’s counsel.

(13) Respondent represented to Mr. Dinney that she had been retained to represent Mrs. Brown, the debtor, as well as Mrs. Brown’s husband, the co-borrower, and that she needed additional time to prepare for the hearing.

(14) This was a misrepresentation, as Mrs. Brown had not retained respondent to represent her in her bankruptcy matter.

(15) Respondent had several telephone conversations with Mr. Dinney on February 12, 1997, and an agreement settling the motion was reached.

(16) The settlement negotiated by respondent and Mr. Dinney required Mr. and Mrs. Brown to sign a written agreement setting forth the terms of the settlement.

(17) Respondent did not have Mrs. Brown’s authority to settle the motion.

(18) Believing that an oral settlement agreement had been reached between all parties, Mr. Dinney cancelled the February 13, 1997 hearing relating to the motion.

(19) Under cover of a letter dated February 13, 1997, Mr. Dinney sent respondent a “Stipulation of settlement [207]*207of motion for relief from the automatic stay” for respondent’s signature and that of her “clients,” with a request that the stipulation be returned to his office.

(20) Respondent received the letter of February 13, 1997.

(21) The stipulation stated that it pertained to a bankruptcy case involving a debtor named Suzanne Brown and that respondent represented Mr. and Mrs. Brown.

(22) Upon receipt and review of this letter and the stipulation, respondent failed to advise Mr. Dinney that she did not have the authority to settle the motion on Mrs. Brown’s behalf and that she did not represent Mrs. Brown.

(23) On April 8, 1997, Comnet filed a motion of Comnet Mortgage Services to enforce agreement to enter into stipulation and for sanctions.

(24) On April 7, 1997, Mr. Dinney mailed a copy of the motion to enforce to respondent by regular mail.

(25) Respondent received and reviewed the motion to enforce.

(26) Respondent realized that Mr. Dinney believed she represented Mrs. Brown; nevertheless, she took no immediate action to advise Mr. Dinney that she did not have authority to settle the motion on Mrs. Brown’s behalf and that she did not represent Mrs. Brown.

(27) On May 1,1997, Bankruptcy Judge Diane Weiss Sigmund held a hearing on Comnet’s motion to enforce.

(28) At no time prior to the date of the hearing did respondent contact Mr. Dinney to advise him that she did not have the authority to settle the motion on Mrs. [208]*208Brown’s behalf and that she did not represent Mrs. Brown.

(29) On the morning of the hearing, respondent disclosed that she was acting as counsel for Mr. Brown, but not Mrs. Brown.

(30) Following the hearing, Judge Sigmund issued an order dated May 21, 1997, in which she found that respondent:

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70 Pa. D. & C.4th 202, 2004 Pa. LEXIS 3407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-disciplinary-counsel-v-bentivegna-pa-2004.