author: MORRIS, Member,

text:
    In re Anonymous Nos. 66 D.B. 93 and 97 D.B. 95

      Disciplinary Board Docket no. 66 D.B. 93 and 97 D.B. 95.
    March 15, 1999—
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MORRIS, Member,

Pursuant to Rule 218(c)(5) 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-captioned petitions for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, [ ], filed petitions for reinstatement, from suspension in cases no. 66 D.B. 1993 and no. 97 D.B. 1995 on June 11, 1998. These petitions were consolidated for the instant reinstatement hearing. Petitioner was suspended for a period of two years in the matter of 66 D.B. 1993 by order of the Supreme Court issued March 28, 1996. In the matter of 97 D.B. 1995, petitioner was suspended by order of the Supreme Court issued May 5, 1998 for a one-year period to run concurrent with the suspension in no. 66 D.B. 1993.

A reinstatement hearing was held on September 28, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee filed a report on November 20, 1998 and recommended that the petitions for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of January 13, 1999.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom in 1938 and was admitted to practice law in Pennsylvania in 1965. His current home address is [ ].

(2) Petitioner was suspended from the practice of law for a period of two years on March 28,1996, in the matter of no. 66 D.B. 1993. This suspension resulted from a determination that petitioner commingled and converted funds from the [A] estate during the time frame of 1991 to 1993.

(3) During the investigation of the charges in no. 66 D.B. 1993, petitioner was asked to turn over certain banking records to Office of Disciplinary Counsel. Office of Disciplinary Counsel formulated a set of charges based on the analysis of these records and filed them in a separate case at no. 97 D.B. 1995.

(4) Petitioner was suspended from the practice of law for a period of one year on May 5,1998, in the matter of no. 97 D.B. 1995. This suspension was ordered to run concurrent with the two-year suspension in no. 66 D.B. 1993. The one-year suspension resulted from a determination that petitioner commingled and converted funds belonging to seven other clients between 1991 and 1993.

(5) Petitioner presented expert evidence at both disciplinary hearings, linking his misconduct to his abuse of alcohol.

(6) At the time of the disciplinary hearing held in the autumn of 1994 on no. 66 D.B. 1993, petitioner was still drinking alcohol, despite the fact that his alcohol abuse substantially caused his misconduct. At that time, petitioner believed that he could control his problems by regulating the type and amount of alcohol he drank.

(7) On February 1,1996, petitioner drank excessively at a social function and experienced a blackout. He then realized that there was no middle ground for him and he needed help. Petitioner stopped drinking at this point.

(8) In April 1996, shortly after he received the two-year suspension order from the Supreme Court, he attended some Lawyers Concerned for Lawyers meetings and spoke to fellow attorneys regarding his problem.

(9) Petitioner asked Attorney [B] from [ ] to be his sponsor for Alcoholics Anonymous. [B] challenged petitioner to attend 90 A A meetings in 90 days.

(10) Petitioner did so and continued to attend over 300 meetings in the first 300 days of his alcohol recovery.

(11) Currently petitioner attends three or four meetings per week. His “home group” is a Sunday night meeting in [ ]. In addition, petitioner attends public meetings with his wife on Sunday mornings, a Tuesday night meeting in [ ] near his home, and occasionally a Thursday late afternoon meeting in [ ] with a lawyer ’ s group.

(12) Petitioner has attended A A conferences and seminars in various places and serves as a sponsor for other members of AA.

(13) During his suspension, petitioner became involved as a volunteer counselor at [C] Hospital in [ ], where he previously served as legal counsel and continues today on the board of directors. Petitioner counsels in the hospital’s detox and behavioral health unit, where he works with patients who have alcohol problems.

(14) Petitioner was appointed in June 1998 as chairman of a major beautification project in [ ] County. Petitioner is also involved in Habitat for Humanity of [ ] County, which builds homes for impoverished families.

(15) While suspended, petitioner maintained a title insurance agency under the name of [D], and he served on the board of a cemetery.

(16) Petitioner has been sober since February 1,1996.

(17) Witnesses testified on behalf of petitioner as to his continuing sobriety. [B], Esquire, petitioner’s sponsor, testified by deposition that petitioner has maintained attendance at meetings and has excellent relationships with his family members. He states that there is no evidence that petitioner has started drinking again.

(18) [E], petitioner’s wife, testified that he is a different person now that he is not drinking. She testified that he is very conscientious about attending his various weekly meetings, and he understands how alcohol use can impact him if he does not stay sober.

(19) Attorney [F] testified that he first met petitioner in the [ ] lawyer’s group. Attorney [F] testified that in his opinion, petitioner has maintained complete sobriety. He calls petitioner occasionally and sees him at the meetings and, from his observances, petitioner is not drinking.

(20) [G], petitioner’s sponsor in [ ], testified that petitioner attends AA meetings very regularly and is making good progress with his alcoholism.

(21) Attorney [¶] of [ ] testified by deposition that he has known petitioner for approximately 30 years. Petitioner’s reputation in the community is very good, and his readmission to the practice of law would not be detrimental in any way to the community, according to Attorney [H].

(22) Petitioner testified that he knows he is an alcoholic, and he intends to continue attending AA meetings on a regular basis. He testified that he believes those people who have had relapses had them in part because they discontinued their attendance at meetings. Petitioner does not plan to let that happen.

(23) Petitioner plans to reopen his office in [ ] if he is reinstated and limit his cases to estate administration and small commercial matters.

(24) Petitioner attended continuing legal education courses and received a total of 55 credits. He also read the advance sheets and the Pennsylvania Lawyer to keep current on trends in the law.

(25) Petitioner expressed remorse for his misconduct.

III. CONCLUSIONS OF LAW

Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency, and learning in the law necessary to practice in Pennsylvania.

Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

An attorney who is suspended from the practice of law for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania, pursuant to Pa.R.D.E. 218(a). In order for petitioner to gain reinstatement after suspension, he has the burden of demonstrating, by clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law required for admission to practice law. Part of petitioner’s burden also requires that he demonstrate that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(I).

In determining whether petitioner clearly demonstrated his present fitness to practice law, the board considered the nature of petitioner’s misconduct, his present competence and legal abilities, his character, rehabilitation and degree of remorse expressed. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

The petitions for reinstatement were filed by petitioner from two orders of suspension entered by the Supreme Court of Pennsylvania at no. 66 D.B. 1993 and no. 97 D.B. 1995. The charges at no. 66 D.B. 1993 involved petitioner’s admitted commingling and conversion of funds of an estate. In its report dated March 4,1996, the board found that petitioner established, pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), that his misconduct was substantially caused by his abuse of alcohol. Petitioner received a two-year suspension.

During the investigation of the charges at no. 66 D.B. 1993, petitioner was requested to turn over his banking records to Office of Disciplinary Counsel. The charges at no. 97 D.B. 1995 were formulated based on investigation of these records. Petitioner was charged with commingling and conversion of funds of seven clients over a two-year period coinciding with the time period of the misconduct in no. 66 D.B. 1993. Expert testimony was presented that petitioner’s alcoholism was a causal factor in his misconduct. As a result, petitioner was suspended for one year to run concurrently with the suspension in no. 66 D.B. 1993.

At the time of the first disciplinary hearing in the matter of no. 66 D.B. 1993, petitioner was still consuming alcohol, even though he knew that his alcohol problem caused his misconduct. Petitioner believed that he could regulate his alcohol intake and thus solve any problems he was having. Petitioner stopped drinking hard liquor, while continuing to drink wine and beer. Petitioner was convinced that his problems were over until February 1, 1996, when he drank excessively at a social occasion and experienced a blackout. Petitioner realized that he was unable to deal with this problem on his own and sought help from other attorneys, who guided him to Lawyers Concerned for Lawyers. Since February 1,1996, petitioner has been sober. He became involved in Alcoholics Anonymous and attended over 300 meetings in 300 days.

Currently petitioner attends three or four meetings per week, either in [ ] or the surrounding area. Petitioner acknowledges that he is an alcoholic and must avoid drinking for the rest of his life. He is aware of the steps he must take to avoid a relapse, such as continuing to regularly attend AA meetings and keeping in touch with his sponsors.

During petitioner’s suspension from the practice of law, in addition to seeking treatment for his alcohol abuse, he continued his involvement in his community. He volunteered at [C] Hospital as a counselor in the behavioral health unit, and he served on the board of directors of the hospital. Petitioner undertook the chairmanship of a beautification project in [ ] County. Petitioner volunteered in Habitat for [ ] County, a group which helps build homes for impoverished families. Petitioner also maintained a title insurance company and served on the board of a local cemetery.

Petitioner kept current in the law by reading the advance sheets and the Pennsylvania Lawyer. He received 55 continuing legal education credits for seminars he attended.

Petitioner presented character witnesses who testified that he is maintaining sobriety and there is no evidence that he has had a relapse. These witnesses testified that petitioner is hard-working and conscientious and takes his sobriety very seriously. One witness, [H], Esquire, testified that petitioner’s reputation in the community is very good and his readmission to the bar will not be detrimental to the community. Petitioner himself testified to his remorse for his misconduct and his desire to return to the practice of law as a sober person. 'While he understands that the practice of law is filled with stress and pressure, he is confident that he possesses the resources to deal with these stresses in ways other than drinking alcohol.

Petitioner has provided clear and convincing evidence of his rehabilitative efforts, his competence and learning in the law, his remorse, and his moral qualifications. Petitioner’s misconduct was serious and appropriately addressed by the Supreme Court with a two-year suspension and a one-year concurrent suspension. Petitioner completed his suspension without any difficulties or questionable activities.

For these reasons, the board recommends that these petitions for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends pursuant to Rule 218(e), Pa.R.D.E., that petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petitions for reinstatement.

Board Member Marroletti did not participate in the January 13, 1999 adjudication.

Board Member Miller did not participate in the consideration and disposition of this matter.

ORDER

And now, May 20, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated March 15, 1999, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


source: Caselaw Access Project

author: MOTT, J.,

license: Public Domain

text:
    Perry v. PennDOT

      C.P. of Bradford County,
    no. 99 DL 000053.

      Robert G. Fleury, for appellant.

      John V. Rovinsky, for PennDOT.
    July 16, 1999—
   MOTT, J.,

The petitioners, Ronald Perry and Linda Perry, have filed this appeal from the orders of the Department of Transportation which suspended the registrations of their vehicles due to an insurance lapse beyond the 30-day grace period. Despite the lack of any ill intent or fault on the part of the petitioners, the law demands that PennDOT’s orders be affirmed.

When a lapse in financial responsibility coverage for a motor vehicle is reported to the Department of Transportation, the department must suspend that vehicle’s registration for three months. 75 Pa.C.S. §1786(d). Binding case law also holds that:

“There is no requirement that [PennDOT] establish that the person was at fault.. . . Neither is [Penn-DOT] required to prove that the owner or registrant actually received notice of an imminent lapse of insurance. ” O’Hara v. PennDOT, 691 A.2d 1001, 1004 (Pa. Commw. 1997) (emphasis in original) (quoting Stone v. Penn-DOT, 166 Pa. Commw. 643, 645-46, 647 A.2d 287, 288 (1994)).

Here, testimony was presented by the petitioner, Linda Perry, that the lapse in insurance coverage for the petitioners’ vehicles was not their fault. In fact, Mrs. Perry testified that she and Mr. Perry had switched insurance carriers and believed they were covered by the new insurance. She had forwarded premium payments for that coverage to the new insurance company and she had received financial responsibility cards back for each of the petitioners’ vehicles. However, upon receiving notices from PennDOT that the petitioners’ vehicle registrations were to be suspended due to a lapse of insurance, Mrs. Perry discovered that the new carrier had never effectuated a policy on the Perry vehicles. Apparently, the checks Mrs. Perry mailed to the carrier were never received, or if received, never cashed. As a result, for the first time ever, the Perrys had a lapse in insurance coverage.

Mrs. Perry’s testimony was clearly credible. In fact, it was uncontradicted at the hearing. As almost anyone would, we have great sympathy for her and her husband’s plight. Our duty, however, requires, as it does in every case, that our decision be directed by the law, and not by sympathy. Here, unquestionably, the insurance coverage on the petitioners’ vehicles actually lapsed because they canceled the coverage of their old carrier, and the new carrier never commenced coverage, albeit without any fault on the Perry’s part. When there is such an actual lapse, PennDOT is required by law to impose the penalty of suspension of the uncovered vehicle’s registration. It would be a manifest abuse of discretion for the Court to modify that penalty simply because of a disagreement with it. Maynard v. PennDOT, 2 Brad. Cty. L. J. 303, 304 (1998) (citing PennDOT v. Miller, 107 Pa. Commw. 458, 460, 528 A.2d 1030, 1031 (1987)). A court may not reverse or modify such a mandatory penalty simply because it believes the penalty is unfair or inequitable. Id.

All of the foregoing, however, would not have left the petitioners without a remedy if they had acted expeditiously to properly challenge the lapse in their insurance coverage. The proper way to make such a challenge is against the insurance company under the Insurance Act. If the petitioners had done so, and prevailed, PennDOT could not suspend their registrations. Not having done so, they cannot challenge the lapse in this proceeding. O’Hara v. PennDOT, supra at 1004; Penn-DOT v. Riley, 150 Pa. Commw. 259, 615 A.2d 905 (1992), overruled on other grounds, 154 Pa. Commw. 118, 623 A.2d 369 (1993).

Finally, we also point out that the petitioners filed a single appeal from both vehicle suspensions. That is improper. When appealing from more than one suspension, a separate appeal must be filed from each. O’Hara v. PennDOT, 691 A.2d 1001, 1004 (Pa. Commw. 1997); Brogan v. PennDOT, 164 Pa. Commw. 559, 643 A.2d 1126 (1994).

Because of the binding authority applicable to this case, we are compelled to enter the following:

ORDER

And now, July 16,1999, in accord with the memorandum opinion filed this date, the appeal from the orders of the Department of Transportation suspending vehicle registrations filed in the above captioned matter is denied and dismissed. Accordingly, those orders are affirmed.


author: DONOHUE, Member,

text:
    In re Anonymous No. 133 D.B. 97

      Disciplinary Board Docket no. 133 D.B. 97.
    December 1, 1998—
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

DONOHUE, 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

This matter was initiated by a petition for discipline filed on November 6, 1997 by Office of Disciplinary Counsel against respondent, [ ]. The petition alleges that respondent violated Rules of Professional Conduct in his representation of two clients. Respondent did not file an answer to the petition.

By notice dated January 29,1998, a disciplinary hearing was set for February 24, 1998, a copy of which notice was personally served on respondent on February 9, 1998. The hearing was held as scheduled on February 24, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent did not appear for the hearing.

The committee filed a report on June 16, 1998 and recommended disbarment. No briefs on exceptions were filed by the parties.

This matter was adjudicated by the board at the meeting of August 13, 1998.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the 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 provisions of the aforesaid rules.

(2) Respondent was born on January 24, 1954, was admitted to practice law in the Commonwealth on May 2,1984, maintains his office at [ ], and is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) On February 5,1998, petitioner filed with the Disciplinary Board a petition for issuance of a rule to show cause why respondent should not be suspended for failure to comply with a subpoena pursuant to Pa.R.D.E. 208(f)(5), alleging that respondent failed to comply with a subpoena served in a matter unrelated to the instant matter.

(4) On February 5,1998, the Disciplinary Board chair issued an order and rule to show cause requiring respondent to show cause why he should not be suspended for failure to comply with the subpoena.

(5) The petition and order and rule to show cause were personally served upon respondent.

(6) Respondent did not respond to the order and rule to show cause.

(7) On March 18, 1998, petitioner filed a petition to make rule absolute and temporarily suspend respondent for failure to comply with a subpoena pursuant to Pa.R.D.E. 208(f)(5).

(8) The Disciplinary Board certified the matter to the Supreme Court, and on April 20, 1998, the Supreme Court entered an order placing respondent on temporary suspension pursuant to Pa.R.D.E. 208(f).

(9) In addition to his law practice, respondent was a partner in an automobile racing business named [A].

(10) In December 1992, respondent was retained as the corporate attorney for [B] by [C], president of [B]. Respondent incorporated the business in January 1993.

(11) In early February 1994, respondent represented [B] in attempting to recover from a client who had defaulted on a loan. Respondent advised [C] that he was unaware that [B] could provide funding to clients and asked if [C] could help him obtain short-term funding for $50,000 to keep his racing team running until he could obtain funds from a sponsor.

(12) [C] advised respondent that [B] could only finance payroll clients by advancing payroll, subject to approval from his funding source. [C] agreed to take respondent on as a payroll client.

(13) [C] wrote a memorandum to the finance company assuring them that respondent could be trusted because he was [B’s] corporate attorney. The funding company approved the advance on the condition that respondent would guarantee that the money would be returned within 10 days.

(14) On February 9 and 11, 1994, respondent signed client service agreements and warranty and guarantee forms with [B] for the provision of payroll services to his automobile business and his law firm.

(15) Respondent did not disclose the ethical implications of his arrangement to [C] in writing or advise [C] to seek the advice of independent counsel, and [C] did not consent in writing after such disclosure.

(a) Respondent failed to explain to [C] what he would need to do to assure respondent’s personal liability on the loans, in spite of the fact that respondent relied on his personal assets to secure the loan.

(b) Respondent later asserted his lack of personal liability as a defense, taking advantage of the failure of the agreements to assure this security.

(16) [B] delivered a check for $50,000 to respondent on February 9, 1994, and subsequently delivered payrolls to respondent’s law firm and racing business on February 14, 15, and 25, and March 15, 1994. In all, between the initial disbursement and payroll checks delivered to respondent and his employees, taxes and fees, respondent incurred liability of $122,450.52 to [B] between February 9 and March 15, 1994.

(17) On March 10, 1994, respondent wrote check no. 316 payable to [B] in the amount of $64,047.41 drawn on [A], account no. [ ], at [D] Bank.

(a) [B] deposited this check in its bank and promptly wire-transferred these funds to its lender, which would not advance any further payroll until respondent’s account was current.

(b) Check no. 316 was returned on March 21, 1994 for insufficient funds. As a result of this check, [B] had to cover checks written on behalf of other clients, and sustained losses due to interest charges, penalties and adverse perception on the part of other clients.

(18) In order to forestall bad checks as a result of check no. 316, respondent wrote check no. 112 postdated April 8, 1994 payable to [B] in the amount of $35,000 drawn on his [A] account. Respondent told [C] that funds would be available on the date of the check to cover it. In reliance on this check, [B] wired the funds to the IRS for payment of payroll taxes.

(a) On April 12,1994, a stop payment order was placed on check no. 112.

(b) On April 15, 1994, check no. 112 was returned as drawn on uncollected funds.

(19) On April 21,1994, [B] filed a complaint in a civil action against respondent, his partner [E] and [A], seeking damages in the amount of $122,449.52. This action was docketed in the Court of Common Pleas of [ ]

. County at no. [ ].

(20) [B] also terminated its client-attorney relationship with respondent dated May 13, 1994.

(21) In negotiations with [B’s] counsel, respondent agreed to pay [B] the sum of $84,949.53 in settlement. On or about May 27, 1994, respondent wrote check no. 1090 (postdated May 31, 1994) on his attorney at law account at [F] bank, payable to [B] in the amount of $84,949.53.

(22) [B’s] bank refused to accept respondent’s check for deposit because there were not sufficient funds in his account to cover the check.

(23) In all, respondent received benefit of $122,450.52 from [B], of which nearly $100,000 was paid directly to respondent and his staff. He subsequently paid [B] $50,000. The total of bad checks respondent wrote to [B] was $183,996.64.

(24) [B] filed a claim with the Pennsylvania Lawyers Fund for Client Security, which claim was paid in the amount of $50,000. Respondent has not reimbursed the fund.

(25) Beginning in 1991, respondent represented a dry cleaning business of which [G] was the president. Respondent subsequently advised [G] in a financial settlement relating to a divorce.

(26) [G] requested that respondent let him know if he became aware of any other business opportunities that might become available. Due to their client-attorney relationship, respondent knew how much money [G] had to invest and what kind of business opportunities would interest him.

(27) In June 1993, respondent met with [G] and informed him of a limousine business that another client of respondent, [H], had for sale.

(28) In a meeting on June 10, 1993, respondent and [G] agreed to purchase the business as partners.

(a) [G’s] understanding was that he would put up the original capital and run the business. Respondent was to perform all legal work and would pay [G’s] living expenses for the first few months until the business was profitable. Respondent did not give [G] a written partnership agreement, counsel him as to the risks involved in the transaction, advise him to seek the advice of independent counsel, or obtain a written consent to the representation.

(b) [G] believed respondent was still serving as his attorney, particularly since he understood that respondent was to perform legal services for the limousine business as part of his contribution to the enterprise.

(29) On June 10, 1993, [G] delivered two checks in the amount of $35,000 to respondent, who wrote up a handwritten receipt which set forth terms for refund of [G’s] money if the purchase could not be completed by August 15, 1993.

(30) A contract with [¶] was executed on September 2,1993. By this agreement [¶] was to transfer all assets of his company including its only vehicle, registration and PUC license, to respondent and [G’s] new concern. [G] signed the agreement but did not receive a copy of the signed contract.

(31) It was legally necessary for the business to have a PUC license to operate. Respondent advised [G] that he could operate the business while respondent arranged for transfer of the PUC license, and [G] relied upon respondent’s legal expertise in this regard.

(32) [G] began operating the business and was paid by respondent pursuant to their oral agreement. [G] also had access to the proceeds of the business.

(33) In November 1993, the partnership purchased [I] Limousine Company, thereby acquiring two additional vehicles. Respondent paid the $5,000 down payment and [G] agreed to make monthly payments in the amount of $854.62 out of the proceeds of the business. [G] understood that respondent would handle the task of transferring the PUC license.

(34) Between September 1993 and February 1994, [G] repeatedly checked with respondent, who confirmed that the license transfers had not occurred. Respondent assured [G] he would take care of the transfers.

(35) In March 1994, [G] received a telephone call from an officer of the Public Utility Commission, questioning whether he was licensed to run a limousine business. [G] referred this call to respondent.

(36) While [G] was present in his office, respondent spoke on the telephone to the PUC, and stated that [¶] still owned the limousine service, and [G] was [H’s] manager.

(a) This was the first indication [G] had that he and respondent did not own the limousine service.

(b) Respondent subsequently told [G] that [¶] had an undisclosed partner who refused to sign the sales agreement, and thus respondent had not been able to transfer the license.

(37) On May 26,1994, [G] received a cease and desist letter from the PUC. He contacted respondent, and respondent advised [G] to shut down the business, which he did on June 4,1994. [G] returned the limousines purchased from [I] Limousine to the seller, as he lacked income to make ongoing payments.

(38) In the weeks subsequent to the business shutdown, respondent and [G] discussed the possibility of respondent buying out [G’s] interest as contemplated in the agreement of June 10, 1993. However, no repurchase occurred and [G] lost his entire $35,000 investment in the business.

(39) Respondent has no prior history of discipline.

III. CONCLUSIONS OF LAW

By his conduct in the [B] matter, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.8(a) — A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to the client unless:

(a) The transaction and the terms on which the lawyer acquires the interest are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;

(b) The client is advised and is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and

(c) The client consents in writing thereto.

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

By his conduct in the [G] matter, respondent violated the following Rules of Professional Conduct:

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

(2) 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;

(3) R.P.C. 1.8(a) — A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to the client unless:

(a) The transaction and the terms on which the lawyer acquires the interest are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client.

(b) The client is advised and is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and

(c) The client consents in writing thereto.

IV. DISCUSSION

This matter is before the board on a petition for discipline filed against respondent based upon charges of violations of the Rules of Professional Conduct involving two separate clients. Respondent failed to file an answer to the petition, nor did he appear at the disciplinary hearing. He did not file a reply brief in response to petitioner’s brief to the committee, and he never contacted petitioner regarding the proceedings against him. During the pendency of the instant proceedings, respondent was temporarily suspended by order of the Supreme Court dated April 20, 1998 for failing to comply with a subpoena served in a matter unrelated to this case.

The two charges against respondent are factually similar. In both cases, respondent entered into a business transaction with a client without explaining the risks involved or advising the client to consult independent counsel. In both cases, respondent defaulted on his obligations under the arrangement and caused prejudice and financial loss to the client.

In the [B] matter, respondent entered into a complex business transaction with [B], for whom he served as corporate counsel. Rule 1.8(a) required that respondent advise [C], [B’s] principal, of the potential conflicts created by respondent’s roles as corporate attorney, customer and borrower and allow [C] to seek independent counsel or obtain a written waiver of the possible conflicts. Respondent did not so advise [C] at the time of the transaction. This failure was prejudicial to [C] and [B]. Respondent did not advise [B], through [C], of how to secure his own personal liability in the transaction between respondent and [C] on behalf of [B]. Respondent subsequently defaulted on the loan and [B] was forced to file suit against respondent to get the money. Respondent then relied on the lapse in the agreement covering personal liability to defend himself against the suit. This is a clear conflict of interest and exactly the type of situation the requirements of Rule 1.8(a) are designed to avert.

Respondent compounded his problems in the [B] matter by writing three checks on insufficient funds to [B] in the aggregate amount of $183,996.64. The first check was written in the amount of $64,047.41 with respondent’s full knowledge that it would not be covered. In the deposition of respondent taken in the suit filed by [B], which was made part of this record, respondent testified that he knew it would not be covered and it was only written so [C] would have a copy to fax his lender, but respondent never intended for it to be deposited. (Exhibit 29.) This is not a credible explanation, and even if it were true, it would be an admission to respondent’s participation in loan fraud. Writing a bad check with knowledge that it will not be honored is a violation of 18 Pa.C.S. §4105. Although respondent was not criminally convicted, his action in writing that check violates R.P.C. 8.4(b), as he committed a criminal act reflecting adversely on his honesty and trustworthiness as a lawyer.

The other two checks respondent wrote were postdated. There is no clear authority that postdated checks can support a charge under 18 Pa.C.S. §4105, and therefore there is no clear and convincing evidence that these latter checks violate R.P.C. 8.4(b). These checks do represent part of a pattern of dishonesty and deceit engaged in by respondent, and a violation of R.P.C. 8.4(c) is established by this behavior.

In the [G] matter, respondent undertook to represent [G] in the acquisition of a legally licensed limousine business. Respondent informed [G] of the availability of the business and became a partner in it with an expectation of receiving 50 percent of the profits. [G] entrusted $35,000 to respondent for the purchase of the business. [G] was responsible for running the business operations and respondent was responsible for any legal work necessary to transfer valid ownership and licensing to enable the business to function.

Respondent failed from the beginning to comply with his responsibilities to counsel [G] as to the terms of the business. It is clear that [G] regarded respondent as his attorney, in addition to a business partner, as respondent represented him in a variety of business and personal matters before, during and after the limousine business started. Respondent never provided [G] with a partnership agreement setting forth each partner’s duties, and respondent never advised [G] of potential problems associated with his role as attorney and business partner. The only arrangement reduced to writing was a handwritten receipt providing that [G’s] money would be refunded if the sale of the business was not completed by August 15, 1993. Respondent’s actions violated Rule 1.8(a).

Respondent’s duties to the business included transferring the title and the Public Utility Commission license necessary for operation. Respondent did not do these things and failed to inform [G] of the situation. [G] believed he owned the business, when in fact proper title had never been transferred. [G] was subsequently forced to shut down the business and return the limousines. [G] was unable to get his money back from respondent and lost his $35,000 investment. Respondent’s misconduct violated R.RC. 1.3 and 1.4(b).

The most serious misconduct is relative to respondent’s involvement in business transactions with clients without advising the clients of possible complications arising therefrom. Respondent placed his financial interests above the interests of his clients. This resulted in severe prejudice to his clients. Respondent completely ignored his fiduciary responsibilities to his clients.

Prior cases have addressed this type of misconduct. The lawyer in In re Anonymous No. 10 D.B. 85 and 1 D.B. 86, 47 D.&C.3d 361 (1987), was the solicitor for a bank. The lawyer and his wife borrowed $30,000 from the bank for a family real estate transfer. The bank delivered the papers and disbursement check to the lawyer, who was acting as his own attorney in the matter. The testimony established that the bank was relying on the lawyer’s trustworthiness as an attorney rather than as a borrower. The lawyer never obtained record title or recorded the bank’s mortgage. He later defaulted on the payments, causing financial loss to the bank, which had no security in the premises. This attorney also committed lesser misconduct in two other counts and was serving a one year suspension for failing to file income tax returns. The board recommended a three year suspension, but the Supreme Court disbarred the attorney.

In re Anonymous No. 16 D.B. 87, 8 D.&C.4th 493 (1990), arose from the conviction of a lawyer who was the administrator of a pension fund for concealing his financial interest in properties for which the pension fund provided mortgages. The board found that the attorney was involved in a failing business venture and used his position of trust to arrange loans through his business partner resulting in personal profit to him in that it relieved him of personal liabilities. The board recommended a five year suspension, but the court imposed a three year suspension.

The instant matter is aggravated by several facts. Respondent did not make restitution to or comply with his contractual obligations to either [B] or [G]. In the [B] case, respondent benefited in the amount of approximately $50,000 to $75,000. The Lawyers Fund for Client Security made an award of $50,000 to the client, but respondent never reimbursed the fund. It is unclear what happened to [G’s] $35,000. Failure to make restitution or take other remedial steps is an aggravating factor in cases where the attorney’s misconduct has resulted in loss to the client. In re Anonymous No. 31 D.B. 90 and 107 D.B. 91, 20 D.&C.4th 368 (1994).

Respondent failed to appear and defend his conduct in the disciplinary proceeding. This demonstrates respondent’s lack of regard for the disciplinary system and his lack of concern for his misconduct. Such a failure to appear has been treated as an aggravating factor. In re Anonymous No. 3 D.B. 93, 25 D.&C.4th 258 (1995).

After considering the seriousness of respondent’s misconduct, coupled with the aggravating factors discussed above, the board recommends that respondent be disbarred, retroactive to April 20, 1998.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be disbarred, retroactive to April 20,1998, the date your court placed respondent on temporary suspension at no. 12 D.B. 98.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, April 19, 1999, the order entered by this court on January 26, 1999, is hereby vacated and, upon consideration of the report and recommendations of the Disciplinary Board dated December 1,1998, it is hereby ordered that [respondent] be and he is disbarred from the bar of this Commonwealth retroactive to April 20,1998, the date this court imposed the temporary suspension at no. 12 D.B. 98, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.