Supreme Court of Pennsylvania.
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
v.
Sebastian M. RAINONE, Respondent.
No. 1164, Disciplinary Docket No. 3.
Argued Dec. 5, 2006.
Decided Dec. 21, 2006.
Harriet R. Brumberg, Esq., Disciplinary Board of the Supreme Court of PA, Philadelphia, for Office of Disciplinary Counsel.
Larry M. Keller, Esq., Sidkoff, Pincus & Green, P.C., Philadelphia, for Sebastian M. Rainone.
BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER and BALDWIN, JJ.
*15ORDER
PER CURIAM.
Following oral argument, the Court adopts the findings of fact, conclusions of law and the reasoning set forth in the attached Report and Recommendation of the Disciplinary Board dated May 11, 2006.
We hereby ORDER that Sebastian M. Rainone be and he is disbarred from the Bar of this Commonwealth 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.
Justice NEWMAN did not participate in the consideration or decision of this case.
*16 REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania (“Board”) herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.
I. HISTORY OF PROCEEDINGS
On April 12, 2004, Office of Disciplinary Counsel filed a Petition for Discipline against Sebastian M. Rainone, Respondent. The Petition charged Respondent with professional misconduct in five client matters and one matter involving Respondent's attorney registration form. Respondent filed an Answer to Petition for Discipline on May 7, 2004.
A pre-hearing conference was held on July 7, 2004. This conference was attended by Petitioner, Respondent and his counsel, Samuel C. Stretton, Esquire. The parties informed the Chair of the Hearing Committee that they had executed a Stipulation which covered and admitted all of the charges. The disciplinary hearing was rescheduled for October 14, 2004, due to Mr. Stretton's trial schedule. Within days of that hearing, Respondent discharged Mr. Strettonand retained Christopher D. Mannix, Esquire. Respondent gave notice **921that he planned to withdraw his consent to the admission of the Stipulation.
The disciplinary hearing convened on November 15, 2004, before a District I Hearing Committee comprised of Chair Leigh M. Skipper, Esquire and Members Kelley A. Grady, Esquire, and Charles Eppolito, III, Esquire. Respondent was represented by Mr. Mannix. Argument was made on the admissibility of the Stipulation. Following the submission of briefs by the parties, the Hearing Committee issued an Order on January 26, 2005, admitting the Stipulation into evidence. *17An additional hearing was held on February 2, 2005. The Stipulation was introduced by Petitioner. Respondent objected to the admission of the Stipulation. Respondent attempted to introduce an Amended Answer which had not been filed or previously submitted to the Committee. The Committee did not receive the Amended Answer as substantive evidence.
Following the close of the record the parties submitted briefs and the Hearing Committee filed a Report on May 31, 2005. The Committee found that Respondent engaged in professional misconduct and recommended that he be disbarred.
Respondent filed a Brief on Exceptions on June 28, 2005 and requested oral argument before the Disciplinary Board.
Petitioner filed a Brief Opposing Exceptions on July 28, 2005.
Oral argument was held on August 25, 2005 before a three member panel of the Disciplinary Board chaired by Louis N. Teti, Esquire, with Marc S. Raspanti, Esquire, and Min S. Suh, Esquire.
The Disciplinary Board adjudicated this matter at the meeting on September 12, 2005. By Order of the Disciplinary Board dated September 21, 2005, the Board appointed John W. Morris, Esquire, as Special Master and remanded the matter to the Special Master to determine the validity of the Stipulation entered into by the parties.
A Special Master Hearing was held on October 27, 2005.
The Special Master filed a Report on January 3, 2006. He concluded that the Stipulation was validly executed and became binding on the parties; Respondent presented no valid grounds for withdrawing the Stipulation; the Hearing Committee properly admitted the Stipulation and correctly ruled that Respondent could not contradict the Stipulation; Respondent thereafter presented no valid grounds for withdrawing the Stipulation; Respondent's choice to present no mitigation evidence should result in a closing of the record. The Special *18 Master recommended that the record be submitted to the Board for adjudication.
This matter was adjudicated by the Board at the meeting on February 1, 2006.
II. FINDINGS OF FACT
The Board makes the following findings of fact:
The following Findings of the Special Master are incorporated herein:
1. Respondent knowingly and intelligently executed a Stipulation on July 7, 2004, in which he admitted the violations charged in the Petition for Discipline.
2. At the pre-hearing conference held on July 7, 2004, counsel for Petitioner and for Respondent, in Respondent's presence, notified the Chair of the execution of the Stipulation and of that fact that all of the offenses were being admitted.
3. Shortly before the scheduled disciplinary hearing, Respondent discharged his attorney and engaged a new attorney who notified Office of Disciplinary Counsel **922and the Chair of the Hearing Committee of his intent to withdraw the Stipulation.
4. Petitioner objected to the attempt to withdraw the Stipulation.
5. Petitioner would not have suffered actual prejudice from a withdrawal of the Stipulation and could have presented its case through witnesses and exhibits.
6. After considering evidence presented by the parties, arguments, and briefs, the Hearing Committee ruled on January 27, 2005, that the Stipulation would be admitted into evidence.
7. On February 2, 2005, the Hearing Committee found that violations had been committed as to all of the charges against Respondent. The Hearing Committee announced that it would begin the discipline stage of the proceedings.
*198. Respondent, despite repeated invitation by the Hearing Committee, declined to present evidence in mitigation of punishment.
9. Respondent's decision to offer no mitigation evidence was knowing and intelligent and remains unchanged.
The following Joint Stipulations are incorporated herein:
1. Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.
2. Respondent, Sebastian M. Rainone, was admitted to practice law in the Commonwealth in 1972. He maintains an office for the practice of law at 200 Bar Harbor Drive, Suite 400, West Conshohocken PA 19428. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
3. Respondent has no prior history of discipline.
======
Office of Disciplinary Counsel v. Davis
532 Pa. 22, 614 A.2d 1116, Pa., September 16, 1992 (NO. 795 DISC.DKT. 2)
...fee advances. However, for one reason or another Lancaster County did not refund the fees, and Davis did not inquire as to the status of the fee refunds. Ultimately, once Davis learned of the problem, he immediately refunded these fees to his clients. Clearly, Davis did not attempt to cover-up or conceal the receipt of funds or seek to convert client funds to his own use. Thus, while Davis' conduct again leaves much to be desired, it simply does not support a finding that Davis sought to intentionally deprive his clients of these funds. However, I would be remiss if I did not admonish Davis for depositing the master's fee refunds into a bank account containing law firm funds, as Davis is charged with knowledge of the requirements of the disciplinary...
Supreme Court of Pennsylvania.
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
v.
Michael E. DAVIS, Respondent.
Argued Jan. 23, 1992.
Decided Sept. 16, 1992.
Disciplinary proceedings were instituted against attorney. The Supreme Court, No. 795 Disciplinary Docket No. 2, Papadakos, J., held that pattern of misconduct including neglect of legal matters, counseling clients to undertake dishonest acts in court proceedings, deceitful use of affidavit, and commingling of entrusted funds warrants disbarment.
Respondent disbarred.
Cappy, J., dissented and filed an opinion.
West Headnotes
[1] KeyCite Citing References for this Headnote
45 Attorney and Client
45I The Office of Attorney
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Defense of laches is not available in attorney disciplinary proceedings where attorney contributes to the delay and does not demonstrate prejudice.
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Rule prohibiting commingling of funds contains no requirement of intentional act but rather, provides for strict liability. Code of Prof.Resp., DR 9-102(A).
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Ignorance of professional rules does not constitute an excuse for an attorney's conduct which violates the rules.
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In attorney disciplinary cases, Supreme Court is not bound by findings of Hearing Committee or Disciplinary Board, except as guidelines for judging the credibility of witnesses, and the standard of review is de novo, although deference must be given to the Hearing Committee as the trier who views the witnesses, as well as to the recommendations of the Board.
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45k59.14(2) k. Mishandling of Trust Account or Client Funds. Most Cited Cases
(Formerly 45k58)
Pattern of misconduct, including neglect of legal matters, counseling clients to undertake dishonest acts in court proceedings, deceitful use of affidavit, and commingling of entrusted funds, warrants disbarment. Code of Prof.Resp., DR 1-102(A)(4, 6), DR 7-102(A)(5-7).
[7] KeyCite Citing References for this Headnote
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Attorney's office mismanagement is not a mitigating factor with respect to discipline for neglect of legal matters, counseling clients to undertake dishonest acts in court proceedings, deceitful use of affidavit, and commingling of entrusted funds.
**1117 *24 Michael E. Davis, for respondent.
Samuel F. Napoli, Robert Davis, Jr., for Office of Disciplinary Counsel.
Before NIX, C.J., and FLAHERTY, McDERMOTT, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
PAPADAKOS FN*, Justice.
FN* Reassigned to this writer.
The disciplinary matter under review here encompasses two petitions for discipline filed by the Office of Disciplinary Counsel (ODC) charging Respondent with violations of the Code of Professional Responsibility for conduct which occurred in 1982-1983.
The first petition was filed on October 5, 1987, and docketed at No. 74 DB 87. Respondent was charged there with numerous Code violations involving improper venue in divorce cases for purposes of obtaining lower filing costs in his representation of Mrs. Michelle A. Dietrich and Mrs. Deborah R. Wescott.
A second petition was filed on February 12, 1988, and docketed at No. 12 DB 88. These charges of misconduct involved Respondent's failure to return master fees in divorce cases in Lancaster County and commingling of funds. This misconduct also took place in 1982 and 1983.
A Hearing Committee considered both petitions, found that Respondent had committed serious breeches of discipline, and also taking into account his numerous other violations, recommends disbarment. By contrast, the Disciplinary Board, while deciding that several Code rules had been broken, recommends suspension for six months to run concurrently with his last suspension dated January 18, 1985. Disciplinary Counsel urges us to reject the report of the Disciplinary Board in favor of the Hearing Committee's findings and disbar Respondent. For reasons listed below, **1118 we agree with the Hearing Committee*25 and Disciplinary Counsel that disbarment is fully warranted in this case.
It is important to note that at present Respondent remains suspended from the practice of law pursuant to our order dated May 21, 1984, for other disciplinary violations.FN1
FN1. Respondent was suspended three times by this Court: on May 21, 1984 (six months); on September 7, 1984 (one year, consecutive); and on February 28, 1985 (six months, consecutive). He has also been subject to twenty-three informal admonitions, of which all but one were administered in 1982 and 1983. Respondent has not applied for reinstatement pending resolution of the instant complaints.
I. Factual and Procedural History
A. No. 74 DB 87
Charge I: Mrs. Dietrich
Following passage of the new Divorce Code in 1980,FN2 Respondent advertised widely his low cost services for “No Fault” actions. It appears that he began accepting an average of over 100 cases per week. All of these cases were filed in Allegheny County regardless of the client's residence. Because of the large number of non-resident cases filed there, court officials insisted on strict enforcement of venue requirements. Respondent then began filing non-resident cases in Cameron County which charged the lowest filing fee for non-residents. On April 23, 1982, we ordered all president judges to observe the requirements of Pa.R.C.P. 1920.3 which provides that divorce actions must be brought only in the county where either the plaintiff or defendant resides.FN3
FN2. Act of 1980, April 2, P.L. 63, No. 26, 23 P.S. § 101, et seq.
FN3. As amended in 1989, the rule presently permits that a divorce action also may be brought in any county agreed upon by the parties.
Respondent had undertaken representation of Mrs. Dietrich prior to our order of 1982 and planned to file in Cameron County. Following the order, however, he indicated to his client that he could not file in Cameron County. Mrs. Dietrich, whose permanent address was really Montgomery County, then told Respondent that she lived in Philadelphia with her aunt and that Montgomery County, which address appeared on correspondence with Respondent, was a temporary *26 college address. Mrs. Dietrich filed the divorce complaint in Philadelphia. The court there, however, requested an affidavit for the Philadelphia address, and Respondent sent her the affidavit which she signed and which was presented in support of the Philadelphia domicile. At the scheduled hearing, which Mrs. Dietrich attended alone because she refused to pay additional attorney fees, the court confronted her with records from the Department of Welfare indicating that her permanent address was Montgomery County. Mrs. Dietrich then admitted that she lived in Montgomery County to where the divorce action was transferred for disposition.
The issue for our review is whether Respondent knew that Mrs. Dietrich lived in Montgomery County but counseled her to file in Philadelphia where fees were lower and sent a supporting affidavit which she signed affirming her status as a resident of Philadelphia.
The following relevant considerations also are taken into account in evaluating this issue. First, Respondent was aware that Mrs. Dietrich, and almost simultaneously Mrs. Westcott for that matter, was seeking to file her action in a county with the lowest costs. Secondly, once Mrs. Dietrich learned from Respondent that Philadelphia's fees were lower, she told him that she, in fact, lived in Philadelphia, and Respondent acted on this designation of her address by having her file a complaint and affidavit with the court in Philadelphia even though he had corresponded with her at the Montgomery County address.
As to the charges involving Mrs. Dietrich, Respondent has steadfastly denied that he ever counseled her to use the fictitious Philadelphia address in filing her complaint there. He insists that he inadvertently believed that the Montgomery County address was being used by his **1119 client as a mere convenience for receiving mail while he accepted her statement that she was a resident of Philadelphia. Any discrepancies on this matter were due to poor office management brought about by inexperience, failure to supervise his office staff properly, and most importantly the crush of a burgeoning *27 caseload which forced him to work long hours for seven days per week.
[1] These factors, he argues, led to specific filings which were not intentional on his part. The file jacket for Mrs. Dietrich's case, for example, lacked any notation that her Montgomery address “was merely a school address,” as he testified in his defense (H.C.T., p. 54), while failures to investigate further were traceable to sloppy business procedure and secretarial mismanagement.FN4
FN4. Respondent raised the doctrine of laches in his defense. The Disciplinary Board initially remanded the matter back to the Hearing Committee to consider the question of laches arising from the time lapse between the alleged misconduct in 1982 and the filing of the Petitions for Discipline in 1987 and 1988. The Hearing Committee determined that laches was not an issue, and reasserted its recommendation that Respondent be disbarred. The Board accepted this recommendation as to laches. We agree that the defense of laches is not applicable as Respondent contributed to the delay and has not demonstrated the requisite prejudice arising from such delay.
On this basis, the Hearing Committee concluded that Respondent had committed the following violations of the Disciplinary Rules:
DR 7-102(A)(6): participation in the creation of evidence which he knew was false;
DR 7-102(A)(5): conduct prejudicial to the administration of justice in filing the complaint and affidavit upon statements of fact which he knew to be false;
DR 7-102(A)(7): counseling a client in conduct he knew to be illegal and fraudulent;