author: ZULICK, J,

text:
    Johnson v. Johnson

      C.P. of Monroe County,
    nos. 404 DR 2005, 3095 Civil 2005.
    December 5, 2005

      Marshall E. Anders, for plaintiff.

      Kevin A. Hardy, for defendant.
   ZULICK, J,

Defendant Howard E. Johnson (Husband) has raised an allegation of conflict of interest in the representation of plaintiff Catherine M. Johnson (Wife) by Marshall E. Anders, Esquire and the firm of Anders and Masington LLC in this domestic relations case.

Wife filed a complaint in divorce on April 29, 2005. Her counsel at that time was Connie J. Merwine, Esquire. Husband filed an answer and counterclaim in divorce on May 26, 2005. Husband has at all times been represented by Kevin A. Hardy, Esquire and the firm of Wiesmeth and Hardy.

There has been a flurry of litigation between the parties since the divorce pleadings were closed. On July 18, 2005, Wife filed a petition to freeze marital assets, appoint a receiver and for exclusive possession of the marital residence. She also filed a petition on September 8, 2005, seeking money from Husband to pay her expert witness fees, alleging that the marital estate included Husband’s business in residential construction and was worth more than $2.5 million. Husband filed an emergency petition for exclusive occupancy of the marital residence on September 14,2005. Wife filed a motion to corhpel production of discovery material on October 7, 2005. Wife filed a petition for interim award of attorney’s fees on the same day. Rules were issued on all of these petitions, and all were answered and contested.

Wife’s first lawyer, Connie J. Merwine, Esquire filed a praecipe to withdraw her appearance on July 28,2005. On the same document, below Attorney Merwine’s signature, appeared the following:

“Praecipe To Enter Appearance

“Kindly enter my appearance pro se in this matter.

“Respectfully submitted,

“/s/Catherine M. Johnson”

On July 29, 2005, Marshall E. Anders, Esquire of Anders and Masington LLC entered his appearance for Wife.

Husband filed another emergency petition on October 14, 2005, seeking to disqualify Wife’s lawyer and his firm due to an alleged conflict of interest. Wife’s counsel then filed a petition on October 18,2005, requesting the court to hold a hearing and to determine whether a disqualifying conflict existed. A hearing was held on November 17,2005 on the two petitions. Disposition of all other petitions and motions pending before the court was stayed pending a decision on the alleged conflict.

FINDINGS OF FACT

(1) Husband and Wife were married on June 6, 1989.

(2) Husband was previously married. That marriage ended in divorce on September 23, 1987.

(3) Husband retained Randall Turano, Esquire, a lawyer and an associate in the firm of Rosenblum and Anders, to represent him in the divorce.

(4) After the divorce from his first wife, Husband testified that Attorney Turano prepared a prenuptial agreement for himself and Wife.

(5) Husband testified that he stored the prenuptial agreement in his safe, and that when he and Wife encountered marital difficulties, Wife removed the prenuptial agreement from the safe.

(6) Husband attempted to obtain a copy of the agreement in 2005 from Attorney Turano, who is now a sole practitioner. Attorney Turano advised him that he did not have a copy of the agreement, and that Husband should contact the executor of the estate of Robert Rosenblum, Esquire (as Mr. Rosenblum was then deceased).

(7) Husband’s attempts to obtain a copy of the prenuptial agreement from the estate of Rosenblum were unsuccessful, and on April 19, 2005, his attorney wrote to Attorney Anders to learn if he had Husband’s prenuptial agreement file.

(8) Attorney Anders wrote back to him on April 27, 2005, stating that he did not have Husband’s file.

(9) Attorney Turano testified that he recalled preparing a prenuptial agreement for Husband and Wife, but did not remember the terms or provisions of the agreement.

(10) Wife testified that she did not sign a prenuptial agreement and further that Attorney Turano did not prepare one for her.

(11) Husband testified that he had no contact with Attorney Anders during the time that Attorney Turano and the firm of Rosenblum and Anders were representing him.

(12) Attorney Anders testified that he had no contact with Husband during the time that Husband was represented by Attorney Turano and the firm of Rosenblum and Anders.

(13) Attorney Anders also testified that he had no recollection of hearing or seeing Husband’s case while he was a member of the firm of Rosenblum and Anders.

(14) Attorney Turano testified that Robert Rosenblum, Esquire was the partner he discussed Husband’s case with, not Attorney Anders. He also testified that the firm did not have gatherings where Husband’s case was reviewed by other attorneys in the firm.

DISCUSSION

The question now before the court is whether Attorney Anders and his firm have a conflict of interest that precludes them from further representation of Wife in the domestic relations matters now pending before us. I am guided in the resolution of this dispute by Rule 1.9 of the Rules of Professional Responsibility, which provides as follows:

“Rule 1.9. Duties to former clients

“(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.”

Rule 1.9(a) prohibits a representation of a client if the lawyer previously represented a party on the opposite side of the same dispute:

“This rule seeks to protect a client from the future prospect of her attorney marching off to represent her adversaries, using the former client’s secrets to more effectively represent the new clients. Protecting clients from this scenario promotes fairness in litigation and encourages clients to freely communicate with their attorneys.” Focht v. Bryn Mawr Hospital, 16 D.&C.4th 150, 153 (1992).

This is a time-honored rule in this country. As the United States Supreme Court said in 1850:

“There are few of the business relations of life involving a higher trust and confidence than those of attorney and client or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duly of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. Stockton v. Ford, 52 U.S. (11 How.) at 247.” Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 253-54, 602 A.2d 1277, 1283 (1992)

Thus, if Attorney Anders previously represented Mr. Johnson in the preparation of a prenuptial agreement with Mrs. Johnson, he would have a conflict of interest and would be disqualified. The determination as to whether to disqualify counsel because of a conflict of interest is within the discretion of the court. Akerly v. Red Barn System Inc., 551 F.2d 539 (3d Cir. 1977).

No witness in the hearing held on the disqualification motion, including Husband, testified that Mr. Anders had any contact whatsoever with Husband or Wife during the time Husband used the services of Rosenblum and Anders, approximately 17 years ago. Rule 1.9(a) therefore does not require disqualification.

This does not end our inquiry because a lawyer may still have a conflict of interest under Rule 1.9(b) if the lawyer obtained information about the case from the representation by another lawyer in the same firm. Rule 1.9 (b) provides as follows:

“(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

“(1) whose interests are materially adverse to that person; and

“(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent.”

The testimony, in this case revealed no privileged information flowing to Attorney Anders while Attorney Turano represented Husband and prepared a prenuptial agreement. Mssrs. Anders, Turano and Husband all testified that Anders did not have any contact with Husband or his case while Husband was a client of the firm.

The comment to Rule 1.9(b) confirms that in this situation, there is no disqualifying conflict:

“Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.” Rules of Professional Conduct, Rule 1.9, 42 Pa.C.S. adopted October 16,1987; amended August 23,2005, effective January 1, 2005.

Husband also argues that Anders “acquired information relative to the prenuptial agreement that was sought in confidentiality due to the prior representation of Howard Johnson by Rosenblum and Anders P.C.” Husband’s brief, p. 9. Husband’s counsel wrote to Attorney Anders on April 19, 2005, stating that he was looking for a copy of the prenuptial agreement because “the copy of the prenuptial agreement that you had given to him through Attorney Randy Turano was taken by Catherine Johnson prior to the parties’ separation and she is indicating she has no knowledge of the same.” Defendant’s exhibit 1.

Husband stated in his brief that his strategy to recover a copy of the agreement from Wife was to try and trick her into surrendering a copy:

“Howard Johnson was trying to trick Catherine Johnson into believing that he had a copy so that she would supply the original to her attorney and her attorney would supply a copy through discovery in the divorce proceedings. Catherine Johnson, at that time, admitted to Howard Johnson that she had taken the prenuptial agreement.” Husband’s brief, p. 4.

This strategy apparently did not work, because no copy was forthcoming from the parties before our hearing. However, the communication to Attorney Anders by Husband on April 19, 2005 while Husband was searching for a copy of the document would not have had an effect on Wife’s strategy by the time Attorney Anders got into the case on August 15, 2005. The parties had already attended a support conference before the Monroe County Domestic Relations Office, on Wife’s claim for spousal support. As Husband states in his brief:

“Subsequent to the conversation relative to the prenuptial agreement, Catherine Johnson filed a petition for child support and spousal support in the Monroe County Court of Common Pleas. Howard Johnson filed a counter-petition for child support since each party had physical custody of one of the parties’ children. The petitions were heard by Monroe County Domestic Relations and the issue of spousal support claimed by Catherine Johnson was contested due to the prenuptial agreement. The spousal support was denied by Domestic Relations.” Husband’s brief, p. 4.

This hearing was held before Domestic Relations on June 30, 2005 and an interim child support order was entered by the court on July 8, 2005. The parties had already faced-off at a contested hearing at which the prenuptial agreement was an issue, so at a minimum, Wife knew that Husband was unable to produce a copy of it when it was needed, before Attorney Anders entered his appearance in the case. Husband therefore would not have been able to “trick” Wife into producing a copy of the agreement by the time Anders became her lawyer and we will not rely on such a strategy to deny a litigant of her choice of an attorney.

CONCLUSIONS OF LAW

(1) Marshall E. Anders, Esquire and his firm of Anders and Masington LLC do not have a conflict of interest precluding them from representing the plaintiff in this matter.

(2) The court makes no determination at this juncture as to whether a prenuptial agreement exists between the parties or what its terms may be.

ORDER

And now, December 5,2005, following a hearing and consideration of the respective petitions by Husband and Wife for special relief, it is ordered as follows:

(1) Marshall E. Anders, Esquire and the firm of Anders and Masington P.C. do not have a conflict of interest that would disqualify them from representation of plaintiff Catherine M. Johnson;

(2) Defendant Howard E. Johnson’s petition seeking to disqualify Anders and his firm from representation of plaintiff Catherine M. Johnson is denied;

(3) The order staying all proceedings entered on October 20, 2005 is vacated.

      . This attempt to withdraw an attorney’s appearance was not effective because it was in violation of PaiLC.P 1012(b)(1) which requires leave of court unless another attorney enters his or her appearance simultaneously.


source: Caselaw Access Project

author: HODGE, J,

license: Public Domain

text:
    Maggio v. Hughes
    C.P. of Lawrence County,
    no. 832 of 2005, D.R.
    March 8, 2006

      Mary E. Maggio, pro se.

      Charles S. CusickJr., for defendant.

      Robert D. Clark, for Domestic Relations Section.
   HODGE, J,

This matter is before the court on the motion for summary judgment/motion for equitable estoppel filed by the defendant/ petitioner, John W. Hughes.

The factual background for this case is as follows:

On July 30,2003, plaintiff Mary E. Maggio gave birth to a minor child named [ ].

For approximately one year prior to the child’s birth, and for a period of one and one-half years subsequent to the child’s birth, the plaintiff and her infant lived most of the time with Mr. John Nogee.

On August 7, 2003, John Nogee signed an acknowledgment of paternity and subsequent thereto held out the child to be his own. Mr. Nogee testified at the hearing that he would not have done so but for his belief that the child was his, based on the statements from the mother, Mary E. Maggio. Mr. Nogee financially and emotionally supported the plaintiff during and after her pregnancy. In 2004, the relationship between Mr. Nogee and Mary E. Maggio deteriorated, the plaintiff filed for support against Mr. Nogee, and Mr. Nogee filed a custody complaint, seeking partial custody rights with the minor. At the Custody Conciliation Conference on June 29, 2004, the plaintiff informed the court and Mr. Nogee that Mr. Nogee was not the biological father of the child.

The court ordered genetic testing on July 6, 2004, which testing was performed on July 18, 2004. The genetic testing results were received on September 10,2004, which results excluded John Nogee as the father of the child.

However, subsequent to receipt of the genetic testing results, the plaintiff and her child resided in Mr. Nogee’s residence until September of 2005.

By order of this court dated September 9,2005, Judge Thomas Piccione held that John Nogee was not the biological father, that the plaintiff was not entitled to support for the child from him, and that the complaint for support was dismissed.

On October 12,2005, the plaintiff filed a support complaint against the defendant, John W. Hughes. A Support Conference was held on November 18, 2005, at which time the case was referred to the Paternity Section for determination of paternity.

Counsel for defendant subsequently filed this motion for summary judgment/motion for equitable estoppel, and the case was listed for a hearing before this court.

At the hearing on January 26, 2006, counsel for defendant John W. Hughes called as a witness on cross-examination John Nogee, who testified that in 2003, 2004, and until September of 2005, he resided with the plaintiff, Mary E. Maggio, on and off for a period of time. In 2003 and 2004, Mr. Nogee indicated that he provided support for the child. During plaintiff’s pregnancy, his testimony was that the plaintiff lived away from his home as much as she lived there, however, he drove her to the hospital for the birth of the child and waited for the child to be bom. Mr. Nogee was not listed as the father on the first birth certificate, but on a second birth certificate, he was listed as the father. In 2003 and 2004, John Nogee held the child out as his own, and continued to do so until September of 2004. Mr. Nogee testified that Mary E. Maggio, the plaintiff, told him that he was the father of the child, the only one responsible for conception. Upon finding out the re-suits of the genetic testing in September of 2004, he still allowed Mary Maggio and the child to reside at his home and provided support for the plaintiff and the child out of an act of compassion, as he believed that she needed a decent place to live. Plaintiff’s only assets at the time were welfare and food stamps. Mr. Nogee testified that from September of 2004 through September of 2005, he spent most of his time at his ex-girlfriend’s residence.

The plaintiff, Mary E. Maggio, was called as a witness by counsel for the defendant, and testified that prior to residing with Mr. Nogee in November of 2002, she had resided with friends and at the Women’s Shelter. The plaintiff further testified that Mr. Nogee took her to the hospital for the birth and that she had told Mr. Nogee that he was the father, and listed him as such on the birth certificate. The plaintiff testified that after the child was bom, she spent approximately 50 percent of her time with John Nogee, and they lived as girlfriend/boyfriend when they were together. She also confirmed John Nogee’s testimony that after September of2004, he moved in with his ex-girlfriend for a period of time. The plaintiff testified that she resided at John Nogee’s residence until September of2005.

Mary E. Maggio also testified that John Nogee acted in the role of the child’s father until September of 2004, which was the approximate date of the receipt of the genetic results.

Mary E. Maggio also testified that while she knew John W. Hughes, she also knew that he previously had a vasectomy, and was leaning towards John Nogee being the father because of her knowledge that John W. Hughes previously had a vasectomy. She also acknowledged that during the period of conception, she had had sexual relations with John W. Hughes, followed two weeks later with sexual relations with John Nogee.

The defendant, John W. Hughes, testified that he had known Mary E. Maggio for six or seven years, but did not know the child existed until the spring of 2005. Mr. Hughes further testified that the child had never resided with him and he has never held the child out as his child.

Presently, defendant John W. Hughes seeks to avoid the genetic testing procedure by having this court declare that John Nogee is the child’s father, notwithstanding the negative results from the genetic testing, by virtue of paternity by estoppel.

Pursuant to statute, 23 Pa.C.S. §5102(b), paternity shall be determined by any one of the following ways:

“(1) that the parents of a child bom out of wedlock have married each other;

“(2) if, during the lifetime of the child, it is determined by clear and convincing evidence that the father openly holds out the child to be his and either receives the child into his home or provides support for the child; and

“(3) if there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.”

The State Legislature has abolished the status of illegitimacy verses legitimacy, by statute, in stating “that all children shall be legitimate irrespective of the marital status of their parents, and, in every case where children are born out of wedlock, they shall enjoy all the rights and privileges as if they had been bom during the wedlock of their parents.” 23 Pa.C.S. §5102(a).

The Uniform Act upon Blood Tests to Determine Paternity, at 23 Pa.C.S. §5104(c), makes it clear that under Pennsylvania law, while there is a statutory right to obtain blood testing to determine paternity, the right is not absolute, and must be balanced against competing societal/family interest. See also, C.T.D. v. N.E.E., 439 Pa. Super. 58, 61, 653 A.2d 28, 30 (1995). In the current situation, we are not dealing with an intact family and/or an intact marriage.

Generally, estoppel in paternity issues is “aimed at achieving fairness as between the parents by holding ... both mother and father to their prior conduct regarding the paternity of the child.” Freedman v. McCandless, 539 Pa. 584, 592, 654 A.2d 529, 533 (1995), quoting Gulla v. Fitzpatrick, 408 Pa. Super. 269, 279, 596 A.2d 851, 856 (1991). “Where the principle [of estoppel] is operative, [paternity] tests may well be irrelevant, for the law will not permit a person ... to challenge his status which he or she has previously accepted.” Matter of Green, 437 Pa. Super. 606, 610, 650 A.2d 1072, 1074 (1994).

Judge Piccione, in his order of September 9, 2005, held that as a result of genetic testing, John Nogee was not the biological father of the minor child. In addition, Judge Piccione held that while John Nogee signed an acknowledgment of paternity subsequent to the minor child’s birth on August 3,2003, and held the child out to be his own from that point on, he would not have done so had it not been for the plaintiff’s fraudulent conduct and material misrepresentation. See paragraph 13 of Judge Piccione’s order of September 9, 2005. Judge Piccione further found in paragraph 15 of his order that the biological mother, through misrepresentation of material fact, led John Nogee to believe he was the biological father of the minor child.

The Superior Court in Doran v. Doran, 820 A.2d 1279 (Pa. Super. 2003), discusses the doctrine of paternity by estoppel, to the effect that it grew out of a concern for the protection of the family unit; where that unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetuate a pretense. In some cases, application of estoppel would punish the party that sought to do what was righteous and reward the party that has perpetrated a fraud.

The test for fraud is: (1) a misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result. Sekol v. Delsantro, 763 A.2d 405 (Pa. Super. 2000).

It is clear that the actions of John Nogee, in holding out the child as his own, were based upon the fraudulent misrepresentation of Mary E. Maggio, as Judge Piccione held in his order of September 9, 2005.

However, as to Mr. Hughes, there is no indication that he was involved in any manner in the perpetuation of a fraud upon Mr. Nogee; rather, the person responsible for the fraudulent conduct is the mother, Mary E. Maggio.

Under the facts of the present case, the defendant, John W. Hughes, has never acknowledged his paternity of the minor child, has never held himself out to be the father, and has never taken responsibility of any kind, financial or otherwise, for the child. Furthermore, Mr. Hughes indicated that he did not know that a child had been bom until the spring of 2005.

The Supreme Court of Pennsylvania, in the case of In re Adoption of S.A.J., stated as follows:

“Although estoppel has been applied most frequently to prevent fathers from denying paternity when they have acted as fathers in the lives of their children, the doctrine applies equally to the instant situation where [the putative father] denied his paternity, never held himself out to be father, and never took responsibility, financial or otherwise, for [the] child.” 575 Pa. 624, 838 A.2d 616, 625 (2003).

The case sub judice is the converse from how the paternity by estoppel doctrine is generally applied. That is, the doctrine is typically applied to prevent fathers from denying paternity when they have acted, through conduct, as fathers in the lives of the children. However, in the case sub judice, John Hughes has denied paternity, never held himself out to be the father, and never taken responsibility, financial or otherwise, for the child.

The Superior Court of Pennsylvania, in the case of Gebler v. Gatti, 895 A.2d 1 (Pa. Super. 2006) decided Februaiy 2,2006, in addressing a similar issue, held that proof of fraud or misrepresentation on the part of the mother precludes the application of the estoppel doctrine by a putative father, like John Hughes, who may or may not be a child’s biological father.

What is true about the situation is that the mother made inconsistent statements about the paternity of her child. Quite simply, paternity, as of this juncture, is unknown, given the genetic testing results on the record. Although the right to impose genetic testing is not absolute, the societal interest against fatherless children outweighs the right in this case. Therefore, the defendant must undergo genetic testing in this case.

Based upon the foregoing authority, the court is of the opinion that the defendant, John Hughes, may not use the conduct of another individual, John Nogee, which the court held was induced by fraudulent conduct by the mother, as a shield to prevent the imposition of genetic testing to determine the paternity issues in this case.

As a result, the court will enter the attached order.

ORDER

And now, March 8, 2006, for the reasons set forth in the foregoing opinion, the court hereby denies the petition for equitable estoppel, and directs that the Domestic Relations Section schedule genetic testing of the defendant to determine the paternity issues in this case.

The Domestic Relations Section shall properly serve notice upon counsel of record and any party not represented by counsel.


author: RASPANTI, Member,

text:
    Office of Disciplinary Counsel v. Blatt

      Disciplinary Board Docket no. 54 D.B. 2005.
    July 29, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RASPANTI, Member,

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d), Pa.R.D.E.

Petitioner, Office of Disciplinary Counsel, by Paul J. Killion, Chief Disciplinary Counsel, and Mark G. Weitzman, Disciplinary Counsel, and respondent, Timothy John Blatt, file this joint petition in support of discipline on consent under Rule 215(d) of the Pennsylvania Rules of Disciplinary Enforcement and respectfully represent that:

(1) Respondent, Timothy John Blatt, was bom in 1964 and was admitted to practice law in the Commonwealth of Pennsylvania on November 17,1989. Respondent was transferred to voluntary inactive status on July 1, 2004.

(2) Respondent’s attorney registration mailing address is Law Office of Steven Cranfill, P.C., 1421 Rumsey Avenue, Box 3009, Cody, WY 82414. Respondent was admitted to practice law in the state of Wyoming on April 14, 2003.

(3) Petitioner filed a three-charge petition for discipline against respondent with the secretary of the Disciplinary Board on April 25,2005. Respondent was served with a copy of that petition on May 6,2005. Respondent filed an answer to the petition with the secretary of the Disciplinary Board on May 23, 2005.

SPECIFIC FACTUAL ADMISSIONS AND RULES OF PROFESSIONAL CONDUCT VIOLATED

(4) Respondent hereby admits that the following factual allegations in that petition for discipline are true and correct and that he violated the charged Rules of Professional Conduct.

(5) On October 1, 2001, respondent began employment as an attorney with the law firm of Joseph & Douglas, located in Hermitage, Mercer County, Pennsylvania, with a base salary and benefits.

(6) On October 19,2001, Amy Sewinsky was involved in an automobile accident. She then hired the law firm to represent her on a contingent fee basis. Respondent and James Douglas, one of the law firm’s three partners, worked on the Sewinsky case.

(7) By a memorandum dated June 26, 2003, respondent requested that the law firm’s three partners accept the memorandum as written confirmation of his resignation from the law firm as he was moving to Wyoming on July 15,2003. The law firm’s partners accepted respondent’s resignation.

(8) Respondent’s employment at the law firm ended on July 15,2003, but he did not move to Wyoming until late July 2003.

(9) On July 17,2003, Mr. Douglas and Ms. Sewinsky met with an insurance adjustor, at which time it was formally agreed that Ms. Sewinsky’s claim would be settled for $9,000.

(10) After respondent ended his employment with the law firm, he took with him several client files belonging to the law firm without any of the partners’ knowledge and consent, including the file for Ms. Sewinsky’s personal injury action.

(11) On July 18, 2003, respondent went to the adjustor’s office and obtained the settlement check for $9,000. The check was made payable to respondent and Ms. Sewinsky. Respondent did not inform the adjustor that he was no longer employed at the law firm.

(12) When respondent received the $9,000 check, he knew that the check proceeds of $9,000 should be deposited into the law firm’s trust account as he was a salaried employee of the law firm.

(13) On July 19, 2003, Ms. Sewinsky met with respondent and had her sign her name on the back of the settlement check as her endorsement. Respondent then gave Ms. Sewinsky a check for $5,777, drawn on his personal checking account, and told her that he deducted $3,000 for legal fees and $233 for advanced costs from the $9,000 settlement proceeds.

(14) Respondent did not then forward to the law firm the remaining $3,233 due the law firm from the $9,000 proceeds. Instead, respondent deposited the check proceeds of $9,000 into his personal checking account and used the proceeds for his own personal purposes.

(15) On July 28, 2003, respondent acknowledged to Mr. Douglas that he kept the amount of legal fees and costs due the law firm.

(16) On July 31,2003, respondent agreed to return to the law firm the files he had taken but did not commit to return the $3,233 owed to the law firm from the Sewinsky settlement.

(17) On about August 4,2003, respondent returned three files to the law firm but did not return the Sewinsky file.

(18) On about September 10, 2003, respondent sent the law firm a check for $2,000, annotated “Sewinsky,” dated October 9,2003, and drawn on his personal checking account at Greenville Savings Bank.

(19) Thereafter, respondent did not provide the law firm with the remaining $1,223 still owed from the Sewinsky settlement proceeds, and did not return the Sewinsky file to the law firm.

(20) Respondent admits that by his conduct as described in paragraphs 5 through 19 above, he violated Rules of Professional Conduct 1.15(a) (not holding property of third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 1.15(b) (not promptly notifying a third person upon the receipt of funds in which the third person has an interest and not promptly delivering to the third person any funds that the third person is entitled to receive) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).

(21) In the middle of May 2003, William Morris contacted the law firm about representation after he was denied unemployment compensation benefits. Respondent told Mr. Morris that he would charge him a fee of $500 for representing him at the unemployment compensation hearing.

(22) Respondent represented Mr. Morris at a June 12, 2003 unemployment compensation hearing and, after the hearing, Mr. Morris gave respondent a check in the amount of $500 and annotated, “For attorney fee.”

(23) When respondent received the $500 check from Mr. Morris, he knew that the check proceeds of $500 should be deposited into the law firm’s trust account as he was a salaried employee of the law firm. Instead, respondent endorsed the check, negotiated the check and used the $500 in cash for his own personal purposes.

(24) Respondent did not notify the law firm that he received the $500 check from Mr. Morris.

(25) When Mr. Morris received notice that he had been denied unemployment compensation benefits, he contacted respondent and he agreed to represent Mr. Morris in filing an appeal on his behalf.

(26) During a telephone conversation with Mr. Morris the next day, respondent represented to him that he already started the paperwork for filing the appeal.

(27) Respondent did not take action to file the unemployment compensation appeal on behalf of Mr. Morris.

(28) Thereafter, on July 8,2003, respondent prepared a memorandum for the Morris case, which stated that “this case is closed, no outstanding fees owed.”

(29) In about late July 2003, Mr. Morris telephoned respondent at the law firm and was told that respondent had left the law firm’s employment and moved to Wyoming. Mr. Morris was told that law firm records reflected that his case had been closed and he had not retained the law firm to represent him.

(30) On about July 28, 2003, respondent misrepresented to Mr. Douglas that he had filed the appeal and a brief on behalf of Mr. Morris, and that he gave the law firm a check from Mr. Morris for legal fees for that case.

(31) Respondent then sent Mr. Morris a check in the amount of $500, drawn on his personal checking account, and annotated “fee refund.” However, Mr. Morris was not due a refund of the $500, as the law firm was entitled to those funds as fees earned by respondent for representing Mr. Morris at the unemployment compensation hearing.

(32) Respondent sent Mr. Morris a handwritten letter with the check, in which he misrepresented to Mr. Morris that he had overlooked his appeal, he neglected to open a file on Mr. Morris’ case and he had placed the $500 check in his pocket and his wife found it and deposited it, thinking it was from one of respondent’s tenants, and, therefore, no fee was recorded at the law firm which would have caused the file to be opened and the appeal placed on his schedule.

(33) Respondent admits that by his conduct as described in paragraphs 21 through 32 above, he violated Rules of Professional Conduct 1.3 (not acting with reasonable diligence and promptness in representing a client), 1.15(a) (not holding funds of third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 1.15(b) (not promptly notifying a third person upon the receipt of funds in which the third person has an interest and not promptly delivering to the third person any funds that the third person is entitled to receive) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).

(34) On June 3, 2003, respondent met with Anthony Pollock and his fiancee, at which time respondent agreed to represent Mr. Pollock regarding criminal charges that had been filed against him.

(35) At that time, Mr. Pollock’s fiancee gave respondent $2,000 in cash and, upon her request, respondent provided her with a receipt from the law firm’s receipt book acknowledging that he had received the $2,000 in cash.

(36) Respondent then removed the carbon copy of the receipt from the law firm’s receipt book.

(37) At the time respondent received the $2,000 in cash, he knew that the $2,000 should be deposited into the law firm’s trust account as he was a salaried employee of the law firm. Instead, respondent gave the law firm’s bookkeeper $1,000 in cash and misrepresented to her that that was all the funds he had received on behalf of Mr. Pollock. Respondent kept the remaining $1,000.

(38) Based upon that misrepresentation, the bookkeeper made an entry in the law firm’s computer system reflecting that $ 1,000 was received on behalf of Mr. Pollock.

(39) Respondent represented Mr. Pollock at a June 12, 2003 preliminary hearing.

(40) In early September 2003, several weeks after respondent had terminated his employment with the law firm and moved to Wyoming, respondent sent a money order for $1,000 to a lawyer he believed was representing Mr. Pollock in his criminal case. Those funds were ultimately paid to Mr. Pollock’s lawyer.

(41) Respondent admits that by his conduct as described in paragraphs 34 through 40 above, he violated Rules of Professional Conduct 1.15(a) (not holding funds of third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).

SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE

(42) Petitioner and respondent jointly recommend that the appropriate discipline for respondent’s admitted misconduct is a suspension from the practice of law for a period of six months.

(43) Respondent hereby consents to that discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Rule 215(d), Pa.R.D.E., stating that he consents to the recommended discipline and including the mandatory acknowledgements contained in Rule 215(d)(1) through (4), Pa.R.D.E.

(44) In support of petitioner and respondent’s joint recommendation, it is respectfully submitted that:

(a) There are several mitigating circumstances:

(i) respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct;

(ii) respondent has cooperated with petitioner, as is evident by respondent’s admissions herein and his consent to receiving a six-month suspension;

(iii) he is remorseful for and embarrassed by his misconduct and understands he should be disciplined, as is evident by his consent to receiving a six-month suspension; and,

(iv) he has no prior disciplinary history.

(b) Respondent is aware that if he is suspended from the practice of law in Pennsylvania, he may be subject to the imposition of reciprocal, identical or comparable discipline in Wyoming where he currently resides and practices law.

(c) Respondent has no present intent to return to Pennsylvania and practice law.

(d) Respondent has agreed to:

(i) make restitution to the law firm for the remaining $1,233 owed to the law firm from the Sewinsky settlement proceeds and the $500 owed to the law firm for the legal fees paid to respondent by Mr. Morris; and,

(ii) return the Sewinsky file to the law firm.

(45) Respondent’s admitted misconduct includes misappropriating $3,733 in fees and costs due the law firm, not promptly informing the law firm of his receipt of funds owed to the law firm, not promptly delivering these funds to the law firm, misrepresentations to the law firm partners as to his having provided fees to the law firm and as to the status of a client’s appeal, a misrepresentation to the client as to why he did not file the appeal, misrepresentations to the law firm’s bookkeeper as to the amount of funds received as fees from a client and dishonest and deceitful conduct in removing the carbon copy of a receipt for $2,000 from the law firm’s receipt book.

(46) A six-month suspension is within the range of public discipline imposed in similar Pennsylvania disciplinary cases involving lawyers who have misused funds belonging to a law firm and related misconduct.

(47) In Office of Disciplinary Counsel v. Muir, no. 79 D.B. 2002, No. 891 Disciplinary Docket no. 3 (2004) (an unreported case), the lawyer was suspended for three months. While employed by a law firm, the lawyer received $2,812 from four clients for legal fees due the law firm. On each occasion, she did not promptly inform the law firm that she had received the funds and did not timely provide the funds to the law firm. She later gave cash to the law firm’s bookkeeper to repay the funds she had received. The lawyer misrepresented to a law partner that she did not remember what had occurred concerning a check for $500 that she had endorsed and used the proceeds for her own purposes.

In its report, the Disciplinary Board found that the most egregious conduct was the lawyer’s admitted personal use of the check proceeds of $500. The board did not find that the lawyer misused the remaining funds she had received in cash. The board found that the lawyer presented favorable mitigating circumstances. She testified she was remorseful and ashamed of her conduct, she presented strong character testimony and she also demonstrated positive changes in her new law practice.

The board stated that while there is no per se discipline in Pennsylvania, the conversion of funds is a serious offense, and the taking of funds due a law firm is no less a serious offense than the conversion of client funds. The board stated that after a review of the nature of the misconduct and the mitigating factors in the context of the case law cited, the board was persuaded that a short suspension of three months was appropriate. The Supreme Court concurred, and the lawyer was suspended for three months.

(48) In Office of Disciplinary Counsel v. Staropoli, no. 97 D.B. 2002, 69 D.&C.4th 116 (2004), the lawyer was suspended for one year retroactive to his transfer to inactive status. While an employee of a law firm, the lawyer converted $3,000 in legal fees owed to the law firm from a $9,000 settlement. He did not notify the law firm that he had settled the case and received the settlement check. He deposited the check proceeds into his personal account and gave the client her share of the proceeds. He then made misrepresentations in three letters to the law firm regarding his actions.

In its report, the Disciplinary Board stated that the lawyer offered no explanation for his actions. The lawyer did not have a disciplinary history, presented favorable character witnesses, expressed remorse for his misconduct and made restitution to the law firm with interest. He also reported his misconduct to the Disciplinary Board, cooperated with the Office of Disciplinary Counsel and took action to have himself transferred to inactive status.

The board found that the lawyer showed a significant lack of judgment in his actions and deserved a suspension, but did not perceive that he was so unfit that he had to petition for reinstatement to prove his fitness subsequent to the suspension. The board found that the lawyer did not pose a threat to clients or the general public and recommended that he be suspended for six months. The Supreme Court suspended the lawyer for one year retroactive to when the lawyer was placed on inactive status.

(49) In Office of Disciplinary Counsel v. Le Bon, no. 115 D.B. 2000, No. 718 Disciplinary Docket no. 3 (2002) (an unreported case), the lawyer was suspended for one year. While employed by a law firm, the lawyer had a client send him a check, payable to the lawyer, for almost $6,000 for legal fees and costs. The lawyer deposited the check proceeds into his personal account instead of the law firm’s account, and used the funds for his personal expenses. When the lawyer was confronted by three partners, he misrepresented that he had deposited the check into his personal account because he was late on a mortgage payment.

The lawyer testified he had no explanation why he requested the check be made payable to him, although he did testify that he was angry with the law firm. In its report, the board stated that the lawyer made restitution, was remorseful and offered impressive character testimony. The lawyer had no prior discipline and admitted that he should be suspended from the practice of law as a result of his misconduct.

The board noted that the Supreme Court had imposed a wide range of suspension on lawyers who had converted money from a client or law firm and recommended that the lawyer be suspended for one year. The board stated that it reached this conclusion after carefully reviewing the implications of the Supreme Court’s order in Office of Disciplinary Counsel v. Fry, no. 49 D.B. 1998, No. 668 Disciplinary Docket no. 3 (2001) (an unreported case), discussed hereafter, in which the board recommended a six-month suspension and the Supreme Court suspended the lawyer for a year and a day. The Supreme Court concurred and suspended the lawyer for one year.

(50) In Office of Disciplinary Counsel v. Geronimo, no. 8 D.B. 1997, No. 402 Disciplinary Docket no. 3 (1998) (an unreported case), the lawyer was suspended for one year and one day retroactive to when the lawyer was placed on voluntary inactive status. While a salaried employee of a law firm, the lawyer diverted to himself and converted to his own use a portion of the fees he had collected on behalf of the law firm, from about November 1994 through approximately January 1996. In its report, the Disciplinary Board stated that the record did not indicate if the lawyer engaged in this misconduct every time he received cash or checks payable to him, nor did it indicate the exact amount pocketed by the lawyer.

The board found as mitigation that the attorney admitted his actions to the law firm, reported himself to the Disciplinary Board and resigned from the firm. He also cooperated with the Office of Disciplinary Counsel by stipulating to what had occurred and waiving the filing of a petition for discipline, paid the $53,000 figure arrived at by the law firm for restitution (which was not based upon the specific amount misappropriated), and was voluntarily placed on inactive status. In addition, character witnesses testified at the hearing and wrote letters to the Hearing Committee concerning his reputation within the community.

The Disciplinary Board cited other disciplinary cases and the mitigating circumstances and recommended that the lawyer be suspended for one year and one day retroactive to when the lawyer went on inactive status. The Supreme Court concurred with that recommendation.

(51) In Office of Disciplinary Counsel v. Fry, supra, the lawyer was suspended for one year and one day. While a partner of a law firm, the lawyer misappropriated funds belonging to the law firm in six separate transactions over a period of about four months. The lawyer participated in the settlement of commercial transactions. His law firm was to receive its fee at the closings. On three occasions, the lawyer took checks payable to the law firm and deposited the proceeds into his own account. On the other three occasions, the lawyer arranged for the fee check to be made payable to him and then deposited the proceeds into his personal account.

In its report, the Disciplinary Board found that the lawyer misappropriated approximately $31,500, did not notify the law firm of his receipt of the funds and used the funds for his own personal purposes. The board also found that the lawyer initially misrepresented to the law partners how much money he had misappropriated, as he did not mention the three checks made payable to himself. The lawyer eventually made full restitution.

The board cited other disciplinary cases and stated that the Hearing Committee’s recommendation for a six-month suspension fell at the lowest end of discipline for this type of offense. The board stated that in light of the lawyer’s cooperation throughout these proceedings and his years of reputable practice, the board was reluctant to ignore the recommendation of an experienced Hearing Committee, especially where the Office of Disciplinary Counsel had not advocated any higher level of discipline. The board concluded that the lawyer’s conduct was an aberrant reaction to aberrant circumstances which were unlikely to be repeated and adopted the recommendation of the Hearing Committee. The Supreme Court did not concur with the board’s recommendation and ordered that the lawyer be suspended for one year and one day.

(52) In Office of Disciplinary Counsel v. Atlas, no. 171 D.B. 2001, 68 D.&C.4th 148 (2004), the lawyer was suspended for three years. Over 44 months, the lawyer converted and commingled fiduciary funds, misrepresented her receipt of fiduciary funds and engaged in a series of false certifications on her attorney annual fee forms. She admitted misappropriating approximately $35,000 in fiduciary funds belonging to another lawyer.

In its report, the Disciplinary Board recommended that a three-year suspension was appropriate, in part because the lawyer had made no restitution of funds and the only mitigating factors were her lack of prior discipline and her efforts at achieving and maintaining sobriety. The Supreme Court concurred with that recommendation.

(53) In In re Anonymous, No. 32 D.B. 1989, 13 D.&C.4th 478 (1992), the lawyer was suspended for three years. From January 1984 until August 1987, the lawyer commingled, converted and otherwise misused for his own use approximately $7,500 in fees intended for and belonging to the law firm where he was employed as a non-shareholder associate.

In its report, the Disciplinary Board found that the lawyer produced evidence that his personality disorder was a factor in causing his admitted egregious misconduct. The board considered the mitigating factors of the lawyer’s youth, his lack of a prior disciplinary record, his cooperation with the Office of Disciplinary Counsel and his making restitution in full. The board stated that in addition, the lawyer has sought and successfully undergone psychiatric counseling. Two doctors testified that they did not anticipate any recurrence of his misconduct and they both expressed optimism about his progress in rehabilitation. Neither psychiatrist characterized the lawyer’s misconduct as motivated by dishonesty, a quality which the board said would negate his fitness to practice law. The board recommended that the lawyer be suspended for three years. The Supreme Court concurred with that recommendation.

Wherefore, petitioner and respondent respectfully request that:

(a) Pursuant to Rule 215(e) and 215(g), Pa.RD.E., the three-member panel of the Disciplinary Board review and approve the above joint petition in support of discipline on consent and file its recommendation with the Supreme Court of Pennsylvania in which it is recommended that the Supreme Court enter an order:

(i) suspending respondent from the practice of law for a period of six months;

(ii) directing respondent to make restitution of $1,733 to the law firm of Douglas & Joseph and return the Sewinsky file to the law firm within six months of the date of the order; and

(iii) directing respondent to comply with all the provisions of Rule 217, Pa.R.D.E.

(b) Pursuant to Rule 215(i), the three-member panel of the Disciplinary Board order respondent to pay the necessary expenses incurred in the investigation and prosecution of this matter as a condition to the grant of the petition, and that all expenses be paid by respondent before the imposition of discipline under Rule 215(g), Pa.R.D.E.

RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

The three-member panel of the Disciplinaiy Board of the Supreme Court of Pennsylvania, consisting of Board Members Marc S. Raspanti, Robert E. J. Curran and Min S. Suh, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on July 6, 2005.

The panel approves the petition consenting to a six-month suspension and restitution of $1,733 to the law firm of Douglas & Joseph and return of the Sewinsky file to the law firm within six months from the date of the order, and recommends to the Supreme Court of Pennsylvania that the attached petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

ORDER

And now, September 8, 2005, upon consideration of the recommendation of the three-member panel of the Disciplinary Board dated July 29, 2005, the joint petition in support of discipline on consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ordered that Timothy John Blatt is suspended on consent from the bar of this Commonwealth for a period of six months, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

Respondent is further directed to make restitution of $1,733 to the law firm of Douglas & Joseph and return the Sewinsky file to the law firm within six months from the date of this order.

It is further ordered that respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.

Respondent, Timothy John Blatt, hereby states that he consents to the imposition of a suspension from the practice of law for a period of six months as jointly recommended by petitioner, Office of Disciplinary Counsel and respondent in the joint petition in support of discipline on consent, and further states that:

(1) His consent is freely and voluntarily rendered, he is not being subjected to coercion or duress, he is fully aware of the implications of submitting the consent and he has not consulted with counsel in connection with the decision to consent to discipline;

(2) He is aware that there is presently pending a proceeding involving allegations that he has been guilty of misconduct as set forth in the joint petition;

(3) He acknowledges that the material facts set forth in the joint petition are true; and,

(4) He consents because he knows that if charges are continued to be prosecuted in the pending proceeding, he could not successfully defend against them.

VERIFICATION

The statements contained in the foregoing joint petition in support of discipline on consent under Rule 215(d), Pa.R.D.E. are true and correct to the best of our knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.


author: GENTILE, Member,

text:
    Office of Disciplinary Counsel v. Buffington

      Disciplinary Board Docket no. 45 D.B. 2004.
    June 22, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GENTILE, 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 March 23, 2004, Office of Disciplinary Counsel filed a petition for discipline against John V. Buffington, respondent. The petition charged respondent with multiple violations of the Rules of Professional Conduct for the unauthorized practice of law. Respondent filed an answer to petition on April 30, 2004.

A disciplinary hearing was held on September 21, 2004, before Hearing Committee 1.07 comprised of Chair Earl M. Forte, Esquire, and Members Lawrence A. Cabanel, Esquire and Patricia Furlong, Esquire. Respondent appeared pro se.

The committee filed a report on February 25, 2005, finding that respondent engaged in ethical misconduct and recommending that he be suspended for a period of six months.

Petitioner filed a brief on exceptions on March 14, 2005.

This matter was adjudicated by the Disciplinary Board at the meeting of May 18, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office of Disciplinary Counsel, whose principal office is situated at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, 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 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.

(2) Respondent, John V. Buffington, was bom in 1947 and was admitted to practice law in the Commonwealth in 1979. He resides at 4730 Oakland St., Philadelphia PA 19124. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) In 1996 respondent applied to sit as an arbitrator in the Philadelphia Court of Common Pleas, pursuant to the Philadelphia Local Rules of Civil Procedure, by filling out and signing an application for initial certification as arbitration panelist, which included the following language:

“I hereby certify that I have been admitted to the bar of the court for one year, have tried at least one case in any forum in Pennsylvania, am currently engaged in the active practice of law, and maintain my principal office in Philadelphia.

“If my status is changed in regard to any of the above, I will immediately contact the Court of Common Pleas, Arbitration Center, and ask that my name be removed from the certified list of arbitrators.”

(5) By order of the Supreme Court of Pennsylvania dated July 22,1999, respondent was transferred to inactive status effective August 21,1999, for failure to comply with the Pennsylvania Rules for Continuing Legal Education (CLE) requirements.

(6) By certified letter dated July 22, 1999, signed for by respondent on July 24,1999, Elaine M. Bixler, secretary of the board, forwarded to respondent a copy of that order, a notice from the CLE Board, copies of Pa.R.D.E. 217 and applicable Disciplinary Board Rules, forms for notice to clients and others, and statement of compliance.

(7) Respondent failed to file with the board a statement of compliance with Pa.R.D.E. 217.

(8) Respondent continued to practice law after his transfer to inactive status, including representation of clients, as follows:

(a) Louis Rodolico: correspondence concerning City of Philadelphia tax matter, 2001; real estate closing, 2003.

(b) Stacia Friedman: preparation and videotaping of execution of power of attorney for Celia Friedman, 2001; preparation and videotaping of execution of will for Celia Friedman, 2003; advice in related matter, 2002-2003; and

(c) Stephen E. Heyer: appearance in Chester County Domestic Relations Court, 2003; advice concerning IRS matter, 2003.

(9) Respondent failed to notify the Arbitration Center in Philadelphia County of his transfer to inactive status and consequent inability to serve as an arbitrator.

(10) Respondent continued to serve as an arbitrator several times a year after his transfer to inactive status and continuing through October 2003.

(11) Respondent continued to list himself as an attorney in telephone directories for each year that he was on inactive status, including the Verizon White Pages and the Philadelphia Legal Directory, continuing through the 2004 publication. His name was contained in a link on his wife’s website, although that link was not extant at the time respondent was placed on inactive status.

(12) Although respondent took no affirmative steps to remove his listing from the Verizon White Pages, he did not take any action to renew or begin any form of advertising subsequent to his inactive status.

(13) In June 2002, respondent sent to the Disciplinary Board his PA Attorney’s Annual Fee F orm for 2002-2003 and his check in the amount of $175 for the fee.

(14) By letter dated June 28, 2002, Suzanne E. Price, Attorney Registrar, returned the check to respondent, notified him that the CLE Board had not certified his compliance with the CLE Board Rules and Regulations, and notified respondent that “[practicing law while on inactive status violated the Rules of Professional Conduct.”

(15) Respondent currently remains on inactive status. He is engaged in the business of managing real estate and has no present plans to return to the practice of law.

(16) Respondent explained his actions in the three legal matters listed above as follows:

(a) He acted as an attomey-in-fact at a real estate closing for the purchaser, Louis Rodolico, a long-term friend who was out of town and unable to attend the closing. Respondent brought a power-of-attomey to the closing and signed closing documents.

(b) He represented Stephen Heyer, his tenant and former divorce client, in a contempt proceeding for back support after Mr. Heyer came to him the day before the scheduled hearing in a “panic” and claimed financial difficulties.

(c) Stacia Friedman asked for respondent’s assistance in the preparation of a power of attorney in connection with prior estate work he had performed for her. Ms. Freidman continued to seek respondent’s advice concerning her mother based on respondent’s experience caring for his mother-in-law who suffered from Alzheimer’s disease.

(17) Respondent did not advise these three clients that he was unable to perform legal work for them due to his inactive status.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would violate the regulations of the profession in that jurisdiction.

(2) R.P.C. 7.1(a) — A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

(3) 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.

(4) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(5) Pa.R.D.E. 203(b)(3) — Willful violation of any other provision of the Enforcement Rules shall also be grounds for discipline; via

(6) Pa.R.D.E. 217(c) — A formerly admitted attorney shall promptly notify, or cause to be notified, of the transfer to inactive status, by registered or certified mail, return receipt requested, all persons or their agents or guardians to whom a fiduciary duty is or may be owed at any time after the transfer to inactive status, and all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing. The responsibility of the formerly admitted attorney to provide the notice required by this subdivision shall continue for as long as the formerly admitted attorney is on inactive status.

(7) Pa.R.D.E. 217(d) — Orders imposing transfer to inactive status shall be effective 30 days after entry. The formerly admitted attorney, after entry of the transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order and its effective date, the formerly admitted attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.

(8) Pa.R.D.E. 217(e) — Within 10 days after the effective date of the transfer to inactive status order, the formerly admitted attorney shall file with the board a verified statement showing that the provisions of the order and these rules have been fully complied with; and all other state, federal and administrative jurisdictions to which such person is admitted to practice. Such statement shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed.

(9) Pa.R.D.E. 217(j) — A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirement: all law-related activities of the formerly admitted attorney shall be conducted under the direct supervision of a member in good standing of the bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision.

IV. DISCUSSION

The facts of record in this matter support the conclusion that respondent engaged in the unauthorized practice of law while on inactive status. Respondent was transferred to inactive status effective August 21, 1999, for his failure to comply with his Continuing Legal Education requirements. Respondent was notified of that transfer and his related responsibilities. Despite his awareness of his inactive status, respondent failed to comply with the Enforcement Rules relating to termination of his practice and continued advertising his services in the White Pages and the Philadelphia Legal Directory, as well as on his wife’s website.

Respondent also engaged in the practice of law with regard to several clients. He advised these clients, prepared documents, and represented a client in a matrimonial legal matter. Respondent’s explanation of these matters indicates that he was helping either a long-term friend or former client who found themselves in a bind and requested his help. Clearly, respondent should have advised these persons of his inability to assist them, but it is somewhat understandable why he had trouble doing so. In the Louis Rodolico real estate closing, there is no clear evidence that respondent did act as a legal representative for his friend, rather than an attorney-in-fact.

Additionally, respondent served as an arbitrator in the Philadelphia Court of Common Pleas, despite the requirement that an attorney be on active status to do so. Although respondent signed a form acknowledging that he had to be an active attorney to sit as an arbitrator, and furthermore, that he was obligated to advise if his status changed, respondent continued his participation as an arbitrator when he was no longer eligible to serve in that capacity.

At the disciplinary hearing respondent admitted his violations and apologized for his misconduct. He terminated all legal matters and informed his clients and the Philadelphia Arbitration Center of his inactive status. Respondent has been practicing law since 1979 and has no prior history of discipline.

Because respondent ignored a Supreme Court order by failing to comply with regulations relating to the termination of his practice and by continuing to practice law, public discipline is required. The board and the court have considered the problematic issue of the unauthorized practice of law and the appropriate sanction to address such misconduct. More serious disciplinary sanctions have been reserved for those cases aggravated by other misconduct or where the attorney was prohibited from practice due to a prior suspension. In re Anonymous Nos. 71 D.B. 99 and 126 D.B. 99, 62 D.&C.4th 547 (2001) (respondent continued to practice after notice of transfer to inactive status for failure to pay annual fee, demonstrated lack of communication and competence in representing client, and had a prior record of private discipline, suspended for two years). Sanctions are severe in matters where the unauthorized practice lasted for a long period of time. Office of Disciplinary Counsel v. Forman, 70 D.B. 2001, 799 Disciplinary Docket no. 3 (Pa. Jan. 31,2003) (respondent practiced for 13 years while on inactive status, suspended for one year and one day).

The board’s review of the instant case leads to the conclusion that respondent’s actions fall within the lower ranges of misconduct and do not warrant a one year and one day suspension. Respondent engaged in very limited acts of legal representation for a short time frame while on inactive status. While it is true that he did not remove his name from the white pages, which number was also his home telephone number, he did not take affirmative steps to renew any advertising or to engage clients. His continued participation as an arbitrator was a prohibited activity, but there is no evidence that he used this participation to actively promote himself as a lawyer. Respondent showed understanding of his misconduct and remorse for it.

The board recommends that respondent be suspended for a period of six months, rather than a year and one day, as proposed by petitioner, which would require petitioning for reinstatement. The totality of the record does not suggest that respondent is an incompetent practitioner who must prove his character and fitness to practice law. This board feels satisfied that a six-month period of suspension will serve to impress upon respondent the absolute necessity and importance of fulfilling the requirements essential to maintaining his professional license if he chooses to practice law.

V. RECOMMENDATION

The Disciplinaiy Board of the Supreme Court of Pennsylvania recommends that the respondent, John V. Buffington, be suspended from the practice of law for a period of six months.

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

Board Members Rudnitsky, Gephart and O’Connor dissented and would recommend a one year and one day suspension.

Board Members Raspanti and Nordenberg did not participate in the May 18, 2005 adjudication.

ORDER

And now, September 20,2005, upon consideration of the report and recommendations of the Disciplinary Board dated June 22,2005, it is hereby ordered that John V. Buffington be and he is suspended from the bar of this Commonwealth for a period of six months, 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.