In re Anonymous 59 D.B. 81
In re Anonymous 59 D.B. 81
Opinion of the Court
To the Honorable Chief Justice and Justices of The Supreme Court of Pennsylvania:
Member,
Pursuant to
I. HISTORY OF PROCEEDINGS
The Office of Disciplinary Counsel filed a petition for discipline against [respondent] on October 19, 1981. The petition alleged pursuant to Rule 208(b)(1) of the Pennsylvania Rules of Disciplinary Enforcement the following charges of alleged misconduct in violation of the Code of Professional Responsibility as follows: ■.
(a) D.R. 1-102(A)(6): Which prohibits ah attorney from engaging in conduct which adversely reflects on his fitness to practice law.
(b) D.R. 6-101(A)(3): Which prohibits an attorney from neglecting a legal matter. ' - / •
(c) D.R. 7-101(A)(l): Which prohibits apt attorney from intentionally failing to seek the lawful objectives of a client through reasonable means.
(d) D.R. 7-101(A)(2): Which, prohibits, an attorney from intentionally fading to carry out a contract of employment entered into with a client for professional services.
(e) D.R. 7-101(A)(3): Which prohibits an attorney from intentionally prejudicing or damaginghis client during the course of the professional relationship.
(f) D. R. 2-110(A)( 1): Which prohibits an attorney from withdrawing from employment in a proceeding before a tribunal without its permission, if permission for withdrawal is required by the rides of the tribunal.
(h) D.R. 2-110(B)(4): Which requires an attorney representing a client before a tribunal, with its permission if required by its rules, to withdraw from employment if he is discharged by his client.
On October 29, 1981, Disciplinary Counsel requested the appointment of a hearing committee since personal services had not been successful. Respondent had closed his office in [ ] and removed to [ ], New Jersey. The matter was referred to hearing committee [ ]. The hearing committee consisted of [ ]. A hearing was scheduled for December 14, 1981. A hearing was held on December 15, 1981 at which testimony was taken. Further hearings were held and further testimony was taken on December 16, 17, 1981 and on January 8, 1982. Respondent represented himself at the hearings on December 15, 16, and 17, 1981 but did not appear at a reconvened hearing on January 8,1982. Respondent claimed illness for his absence on January 8, 1982 at which time the hearing board requested Disciplinary Counsel and the respondent to submit briefs. Disciplinary Counsel submitted a brief but respondent failed to do so.
The hearing committee filed its report on March 25, 1982 and found violations by respondent of Disciplinary Rules as follows:
(a) D.R. 1-102(A)(6): Respondent engaged in conduct which adversely reflected on his fitness to practice law.
(b) D.R. 6-101(A)(3): Respondent neglected the client’s legal matter.
(d) D.R. 2-110(A)(2): Respondent withdrew from client’s employment without taking reasonable steps to avoid foreseeable prejudice to the rights of his client in violation of applicable laws and rules.
(e) D.R. 2-110(B)(4): Respondent failed to withdraw from employment after he was discharged by his client.
The hearing board recommended that respondent be suspended from the practice of law for a period of six months. No exceptions have been filed to the report of the hearing committee by either respondent or Disciplinary Counsel.
II. STATEMENT OF FACTS
Respondent is an attorney licensed to practice in Pennsylvania and has been in practice for 39 years.
Disciplinary Counsel produced overwhelming evidence to prove respondent guilty, not only of neglect, but of gross neglect of his agreed upon representation of his clients. Respondent undertook representation on behalf of [A and B], husband and wife, for a medical malpractice claim in March of 1975. The legal fee for such representation was to be 50 percent of the net result either by verdict if the case were tried or settlement. A complaint in trespass was filed by [A and B] in the United States District Court for the Eastern District of Pennsylvania on March 2, 1977, in which St. Joseph’s Hospital, Dr. [C] and others were named as defendants. Respondent had engaged [D], a Philadelphia lawyer, to prepare and file a complaint, apparently at least in part because respondent was not then an
The lawsuit was assigned to the Honorable [E] who ultimately dismissed the [A and B] complaint, with prejudice by order dated December 11, 1978. In* his order Judge [E] stated that on four different occasions the case was listed for trial but had to be continued because of respondent’s inability to proceed and that the court had borne this state of affairs for nearly two years out of solicitude for [A and B] to prevent them from being penalized for their attorney’s negligence and nonfeasance. The judge pointed out that, without the knowledge of [A and B], respondent had failed to comply with orders instructing plaintiffs to file amotion to amend their complaint as well as an order that respondent associate with co-counsel for the purpose of handling pretrial matters, including discovery, trial of the case and numerous other orders which respondent ignored. Shortly after the filing of the complaint, [D], Esq., withdrew from association with respondent because of respondent’s failure to cooperate and to recognize the value of the lawsuit. Judge [E] remained concerned for [A and B] to prevent them from being penalized for respondent’s recalcitrance and again scheduled the case for trial and admonished respondent “that no further continuances would be granted in the case.” Respondent continued to be negligent and in November of 1978, more than three years after respondent undertook representation of [A and B], Judge [E] redoubled his efforts to guide the parties to an acceptable resolution through settlement and issued an order scheduling a settlement conference on November 21, 1978. The court’s efforts were in
Prior to this time defendants had moved the court to dismiss the matter, with prejudice, and the court had denied defendant’s motion. On November 21, 1978, defendants moved the court to reconsider its previous decision and consistent with the behavior of respondent and respondent’s failure to respond to defendant’s motion to reconsider the dismissal, the court sustained the motion and stated “Plaintiffs have now had nearly two years. During that time they have done nothing but delay and cause the five defendants to attend countless conferences at which nothing could be resolved due to plaintiffs lack of preparation. This court has been more than patient. It tried to overcome the problems presented by counsel’s failing health by urging affiliation with co-counsel. It postponed trial four times for plaintiffs’ convenience. It gave plaintiffs additional time in which to answer motions long overdue. If the court perceived any change in plaintiffs’ behavior it would not dismiss this action.” Accordingly, the court dismissed the action of [A and B], with prejudice.
The testimony reveals that [A and B] were never informed of the aforementioned matters by respondent.
Respondent on behalf of [A and B] and without their knowledge subsequently appealed, out of time, to the United States Court of Appeals for the Third Circuit. Despite the rather late entry of this appeal the Court of Appeals permitted respondent to appeal. Thereafter, on October 5, 1979, motions on behalf of each defendant to quash the appeal were granted by the United States Circuit Court.
Respondent’s failure to properly represent [A and B] resulted in a loss to them of approximately $20,000.
III. FINDINGS OF FACT
1. Respondent failed to diligently and reasonably prosecute the malpractice action for which he was retained in the United States District Court for the Eastern District of Pennsylvania.
2. Respondent failed to communicate with his client regarding the problems which he was having with Judge [E], specifically his repeated failure to comply with various orders of the court, and specifically failed to communicate the many warnings
3. Respondent never communicated to his client that he was not admitted to practice before the very court in which the case was filed.
4. Respondent faded to communicate to this client the opinions of his co-counsel, Judge [F], regarding the relative merit of the case and the potential for settlement.
5. Respondent never informed his client of the dismissal of the underlying case in the United States District Court.
6. Respondent failed to communicate to his client his appeal to the United States Court of Appeals for the Third Circuit and thus acted without authority in doing so.
7. Respondent ignored his client’s letter of August 7, 1979 in which he was dismissed as counsel, and in which he was requested to return the file to his client. This dismissal came about at a time when the appeal in the Court of Appeals was still viable, and ostensibly could still have been perfected. The dismissal in the Court of Appeals did not occur until October 5, 1979. Respondent failed to file briefs, as well as the record below, as required under the Rules of the United States Court of Appeals.
8. Respondent failed to file any response to the motions filed by the various defendants to quash the appeal in the United States Court of Appeals.
IV. DISCUSSION
The evidence is overwhelming that respondent was guilty of violating the Disciplinary Rules as set forth on Page 3 of this report. Respondent’s conduct was more than mere neglect such as would give rise
V. RECOMMENDATIONS FOR THE REASONS SET FORTH ABOVE
The Disciplinary Board recommends to your honorable court, on the basis of the foregoing, that respondent be suspended for a period of six months from the practice of law.
ORDER
And now, August 31, 1982, upon consideration of the recommendation of the Disciplinary Board dated July 7, 1982, it is hereby ordered that [respondent] be and he is suspended from the Bar of the Commonwealth for a period of
Nancy M. Neuman dissented and recommended a suspension from the practice of law for one year.
Reference
- Full Case Name
- In Re Anonymous 59 D.B. 81
- Status
- Published