Office of Disciplinary Counsel v. Zell

65 Pa. D. & C.4th 103
CourtSupreme Court of Pennsylvania
DecidedApril 4, 2003
DocketDisciplinary Board Docket, no. 154 D.B. 2000
StatusPublished

This text of 65 Pa. D. & C.4th 103 (Office of Disciplinary Counsel v. Zell) 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. Zell, 65 Pa. D. & C.4th 103 (Pa. 2003).

Opinion

PECK, 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 May 21, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Mary McNeill Zell, respondent. The petition charged respondent with violation of the Rules of Disciplinary Enforcement and Rules of Professional Conduct based on her failure to appear for a private reprimand.

[105]*105Disciplinary hearings were held on October 17 and December 17, 2001, before Hearing Committee 1.08 comprised of Chair Robert I. Whitelaw, Esquire, and Members John S. Summers, Esquire, and Margarete Pawlowski Choksi, Esquire. Respondent appeared pro se and presented her own testimony.

The Hearing Committee filed a report on November 13,2002, and found that respondent violated the rules as charged in the petition for discipline. The committee recommended that respondent be suspended for a period of one year and one day.

The parties did not take exception to the report of the committee.

This matter was adjudicated by the Disciplinary Board at the meeting of January 15, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

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

(2) Respondent was bom in 1947 and was admitted to practice law in the Commonwealth of Pennsylvania in 1977. Her residence is 145 Carpenter Lane, Philadelphia, PA 19119. She is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

[106]*106(3) By letter dated November 30, 2000, Elaine M. Bixler, executive director and secretary of the Disciplinary Board, informed respondent that:

(a) Respondent had been previously advised of the complaint against her alleging violations of the Rules of Professional Conduct and that the investigation into the complaint had been completed;

(b) It had been determined that the matter be concluded by a private reprimand before the board, for violation of R.P.C. 1.3, 1.4(b), and 1.16(d);

(c) She would be notified in advance of the time and place for the next executive session of the board; and

(d) Respondent had the option of attending the private reprimand, which would be final, or of notifying the office of the secretary, in writing, within 20 days of the date of the letter, that respondent would not appear for the private reprimand and that she would like her case to be referred for institution of a formal proceeding pursuant to Pa.R.D.E. 208(a)(6) and D.B. Rule §87.54.

(4) Respondent was sent the November 30, 2000 letter by regular mail and certified mail, return receipt requested.

(5) Respondent received that letter.

(6) A copy of the November 30, 2000 letter was also hand-delivered to respondent at 8:35 a.m., December 8, 2000, by Robert M. Rancitelli, investigator, Office of Disciplinary Counsel, who personally handed the letter to Harold Zell, respondent’s husband, at her home address, 145 Carpenter Lane.

(7) Respondent did not notify, in writing, the secretary of the Disciplinary Board within 20 days of the date of the letter that:

[107]*107(a) she did not intend to appear for the private reprimand; or

(b) she wanted the board to institute formal proceedings.

(8) By notice to appear for private reprimand following informal proceedings, dated December 21,2000, Ms. Bixler directed respondent to appear before the Disciplinary Board of the Supreme Court of Pennsylvania on Wednesday, January 17,2001,10:30 a.m., in the Pavillion I and II of the Ritz Carlton Hotel, 10 Avenue of the Arts (a/k/a 10 S. Broad Street), Philadelphia, PA.

(9) A copy of that notice to appear was hand-delivered to respondent at 9 a.m. on December 29, 2000, by Mr. Rancitelli, who personally handed the letter to respondent at her home address on Carpenter Lane.

(10) Respondent willfully failed to appear on January 17, 2001, for her scheduled private reprimand.

(11) By letter dated January 24, 2001, Board Chairman M. David Halpem:

(a) informed respondent that by notice dated December 21,2000, she was advised of the hour and date when she was to appear before the Disciplinary Board for a private reprimand,

(b) informed respondent that section 87-53(b) of the Disciplinary Rules provides that “the neglect or refusal of the respondent-attorney to appear for the purposes of private reprimand without good cause shall constitute an independent act of professional misconduct and automatically result in the institution of formal proceedings”; and

(c) attached a copy of the notice and order of November 30, 2000.

[108]*108(12) That letter was hand-delivered by Mr. Rancitelli at 8:55 a.m. on February 1,2001, by personally handing the notice to respondent at her Carpenter Lane address.

(13) Thereafter, respondent failed to contact either the secretary of the Disciplinary Board or the Office of Disciplinary Counsel to inform them:

(a) that she did not wish to receive the private reprimand,

(b) that she wished to institute formal proceedings before a hearing committee; or

(c) of the reason(s) why she was not able to or did not attend the private reprimand on January 17, 2001.

(14) Respondent has been on inactive status since December 2000, due to failure to comply with continuing legal education requirements.

(15) Respondent has a prior history of discipline consisting of two informal admonitions in 1997 and a private reprimand in 2001.

m. CONCLUSIONS OF LAW

(1) Respondent is conclusively deemed to have violated the following Rules of Professional Conduct as a result of her failure to demand the institution of formal proceedings on the underlying matter:

(a) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(c) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest.

[109]*109(2) As a result of her failure to appear before the Disciplinary Board for a private reprimand, respondent violated the following rules:

(a) Pa.R.D.E. 203(b)(2) — Willful failure to appear before the Disciplinary Board for a private reprimand shall be grounds for discipline.

(b) R.P.C.

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