Office of Disciplinary Counsel v. Durney

71 Pa. D. & C.4th 295, 2004 Pa. LEXIS 3412
CourtSupreme Court of Pennsylvania
DecidedJuly 30, 2004
DocketDisciplinary Board Docket no. 55 D.B. 2003
StatusPublished

This text of 71 Pa. D. & C.4th 295 (Office of Disciplinary Counsel v. Durney) 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.

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Office of Disciplinary Counsel v. Durney, 71 Pa. D. & C.4th 295, 2004 Pa. LEXIS 3412 (Pa. 2004).

Opinion

BROWN, 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 April 28,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Joseph James Durney Jr. The petition charged respondent with violations of the Rules of Professional Conduct based on allegations that he converted client funds from an estate checking account on six occasions. Respondent filed an answer to petition on May 30, 2003.

A disciplinary hearing was held on October 27,2003, before Hearing Committee 3.04 comprised of Chair Donald H. Brobst, Esquire, and Members David E. Hershey, Esquire, and Jack M. Stover, Esquire. Respondent was represented by Clyde W. Vedder Jr., Esquire. Respondent stipulated to the facts of the matter as contained in the petition for discipline. Respondent testified on his own behalf and presented the testimony of an ex[297]*297pert witness as well as three character witnesses. Petitioner presented the testimony of one expert witness.

Following the submission of briefs by the parties, the Hearing Committee filed a report on March 17, 2004, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline, and recommending that he be suspended for one year followed by probation with a practice monitor for one year.

Respondent filed a brief on exceptions on April 6, 2004, and requested oral argument.

Petitioner filed a brief opposing exceptions on April 26, 2004.

Oral argument was held on May 10, 2004, before a three-member panel of the Disciplinary Board chaired by Laurence H. Brown, Esquire, with Members Smith Barton Gephart, Esquire, and C. Eugene McLauglin.

This matter was adjudicated by the Disciplinary Board at the meeting of May 18,2004.

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, PA 17101, is invested, under Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving professional 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 provisions of the aforesaid rules.

(2) Respondent, Joseph James Durney Jr., was bom in 1955 and was admitted to practice law in this Common[298]*298wealth in 1980. His registered address is P.O. Box 164, 15 North Cherry Lane, York, PA 17405. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior record of discipline.

(4) In January 1997, respondent became employed as an associate attorney for the York law firm of Andrew Kagen.

(5) Renee S. Gatling of York County, Pennsylvania, died on April 5,1997. As an employee of the Kagen firm, respondent undertook the representation of Gwendolyn Smith of Norfolk, Virginia, the mother of Renee Gatling. On April 21, 1997, respondent caused letters of administration to be issued to Ms. Smith in York County for the Renee S. Gatling estate.

(6) On April 21, 1997, respondent took Ms. Smith to Mellon Bank in York and opened checking account no. ******* as an estate account for the Gatling estate. Ms. Smith was the sole signatory on this account.

(7) At respondent’s request, Ms. Smith signed some blank checks on the estate account to facilitate the administration of the Gatling estate.

(8) Respondent prepared estate account check no. 1040, dated July 24, 1998, in the amount of $700, and payable to respondent.

(9) Estate account check no. 1040 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(10) On or about July 24,1998, respondent negotiated estate account check no. 1040.

(11) Respondent personally utilized the entire $700 proceeds from estate account check no. 1040.

[299]*299(12) Respondent’s use of the proceeds was without the knowledge or permission of Ms. Smith.

(13) Respondent used the $700 in partial payment of a $ 1,000 car repair bill that had been anticipated to be about $300.

(14) Respondent prepared estate account check no. 1041, dated September 25,1998, in the amount of $500, and payable to respondent.

(15) Estate account check no. 1041 bore the signature of Ms. Smith but was drawn by respondent without her permission or knowledge.

(16) On or about September 25,1998, respondent negotiated estate account check no. 1041.

(17) Respondent’s use of the $500 proceeds was without the knowledge or permission of Ms. Smith.

(18) Respondent does not recall how he utilized the $500 proceeds, or the proceeds of any of the checks he wrote subsequent to the first check for $700.

(19) Respondent prepared estate account check no. 1042 dated October 26, 1998, in the amount of $250, and payable to respondent.

(20) Estate account check no. 1042 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(21) On or about October 26,1998, respondent negotiated estate account check no. 1042.

(22) Respondent personally utilized the entire $250 proceeds of estate account check no. 1042, without permission by, or knowledge of, Ms. Smith.

(23) Respondent prepared estate account check no. 1043, dated January 23, 1999, in the amount of $350, and payable to respondent.

[300]*300(24) Estate account check no. 1043 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(25) On or about January 23, 1999, respondent negotiated estate account check no. 1043.

(26) Respondent personally utilized the entire $350 proceeds of the estate account check no. 1043 without the knowledge or permission of Ms. Smith.

(27) Respondent prepared estate account check no. 1050, dated February 15, 1999, in the amount of $25, and payable to respondent.

(28) Estate account check no. 1050 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(29) On or about February 15, 1999, respondent negotiated estate account check no. 1050.

(30) Respondent personally utilized the entire $25 of estate account check no. 1050 without knowledge or permission of Ms. Smith.

(31) Respondent prepared estate account check no. 1044, dated February 16, 1999, in the amount of $50, and payable to respondent.

(32) Estate account check no. 1044 bore the signature of Ms. Smith but was drawn by respondent without her knowledge or permission.

(33) On or about February 16, 1999, respondent negotiated estate account check no. 1044 for cash.

(34) Respondent personally utilized the entire $50 proceeds of estate account check no.

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