Office of Disciplinary Counsel v. Fein, 062920 PASCDC, 2709-3

Docket Nº:2709 Disciplinary Docket 3, 147 DB 2018
Opinion Judge:PER CURIAM
Party Name:OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. MICHAEL B. FEIN, Respondent
Case Date:June 29, 2020
Court:Supreme Court of Pennsylvania
 
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OFFICE OF DISCIPLINARY COUNSEL, Petitioner

v.

MICHAEL B. FEIN, Respondent

No. 2709 Disciplinary Docket No. 3

No. 147 DB 2018

Supreme Court of Pennsylvania

June 29, 2020

Attorney Registration No. 12250 (Out of State)

ORDER

PER CURIAM

AND NOW, this 29th day of June, 2020, upon consideration of the Report and Recommendations of the Disciplinary Board, Michael B. Fein is suspended from the Bar of this Commonwealth for a period of six months, and he shall comply with all the provisions of Pa.R.D.E. 217. Respondent shall pay costs to the Disciplinary Board. See Pa.R.D.E. 208(g).

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 2O8(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

By Petition for Discipline filed on August 15, 2018, Petitioner, Office of Disciplinary Counsel, charged Respondent, Michael B. Fein, with violations of the Rules of Professional Conduct in two related matters. Charge I alleged that Respondent altered records received in response to a subpoena in a matter before the Delaware County Orphans' Court (the "Orphans' Court"), in violation of RPC 3.3(a)(3), 3.4(a), 3.4(b), 8.4(a), 8.4(c) and 8.4(d). Charge II alleged that over a period of approximately three years, Respondent failed to comply with multiple court orders and decrees issued by the Orphans' Court, in violation of RPC 8.4(d). On September 18, 2018, Respondent filed an Answer to Petition for Discipline.

Following a prehearing conference on November 7, 2018, a District I Hearing Committee (the "Committee") conducted a disciplinary hearing on December 12, 2018. Petitioner presented its case by moving into evidence Joint Stipulations of Fact, Law and Exhibits, and the exhibits identified in Petitioner's Exhibit List (P-1 through P-120). Petitioner called four witnesses. Respondent appeared pro se and testified on his own behalf. During the dispositional phase of the hearing, Petitioner relied on the evidence that had been offered to prove the charged rule violations. Respondent testified and introduced exhibits R-1 through R-5.

On February 11, 2019, Petitioner filed a brief to the Committee and recommended that Respondent be suspended from the practice of law for not less than six months. Due to health concerns, Respondent was permitted an extension to file his brief, but did not file a brief.

By Report filed on October 10, 2019, the Committee concluded that Respondent violated the rules charged in the Petition for Discipline and recommended that he be suspended for three months on Charge I and three months on Charge II for a six month period of suspension.

On October 29, 2019, Respondent filed a brief on exceptions to the Committee's Report and recommendation and requested oral argument before the Board. Respondent raised objections to the Committee's conclusions of law and further objected that the Committee failed to consider mitigating facts. Petitioner filed a brief opposing Respondent's exceptions on November 15, 2019 and requested that the Board reject Respondent's exceptions.

Oral argument was held before a three-member panel of the Board on December 18, 2019. The Board adjudicated this matter at the meeting on January 16, 2020.

II. FINDINGS OF FACT

The Board makes the following findings:

1. Petitioner, whose principal office is located at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, Harrisburg, Pennsylvania 17106, is invested, pursuant to Pennsylvania Rule of Disciplinary Enforcement 207 ("Pa.R.D.E."), 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 is Michael B. Fein, born in 1942 and admitted to practice law in the Commonwealth in 1970. Respondent's current attorney registration address is 1040 Bobwhite Drive, Cherry Hill, N.J. 08003.

3. By Order dated December 20, 2019, the Supreme Court of Pennsylvania placed Respondent on administrative suspension for failure to comply with the Pennsylvania Rules for Continuing Legal Education.

4. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

CHARGE I: REDACTION OF RECORDS FROM LIONS GATE

The parties stipulated to Findings 5 - 52, as set forth below.

5. On March 18, 2009, Leonard J. Moskowitz ("the decedent") died testate. When decedent died, he was staying at Lions Gate, a facility located in New Jersey that, inter alia, provided rehabilitation and nursing services. Joint Stipulation ("JS") 5.

6. On January 2, 2007, decedent had executed a document titled "Last Will and Testament" ("the will"). JS 6.

7. Sometime after March 18, 2009, Joshua R. Taylor, decedent's accountant and a named co-executor of the will, attempted to probate the will before the Register of Wills of Delaware County ("the Register of Wills"). JS 7.

8. Bernice Fein, Respondent's mother and decedent's long-time companion, challenged the probating of the will in Delaware County, contending that decedent was not domiciled in Pennsylvania at the time of his death. JS 8.

9. By Order dated July 24, 2009, the Register of Wills determined that decedent was a resident of the State of New Jersey at the time of his death ("the July 24, 2009 Order"). JS 9.

10. On September 4, 2009, Gary Auerbach, Esquire, counsel for Mr. Joseph Fine, the residuary beneficiary under the will, challenged the July 24, 2009 Order by filing a Petition for Citation Sur Appeal of the July 24, 2009 Order ("the domicile Petition") in the Court of Common Pleas of Delaware County, Orphans' Court Division, naming Joshua Taylor as a petitioner. This matter was captioned In the Matter of Estate of Leonard J. Moskowitz, Deceased, docket number 0546-2009 ("the estate case"). JS 10.

11. The Honorable Joseph P. Cronin, Jr., presided over the estate case. JS 11.

12. Ms. Fein opposed the domicile Petition and was represented by Christopher H. Gadsden, Esquire, in the estate case. JS 12.

13. On June 30, 2010, Mr. Gadsden filed in the estate case "Respondent's Petition for Issuance of a Letter Rogatory addressed to the Superior Court of New Jersey, Law Division, Camden County, New Jersey, Concerning Lions Gate Continuing Care Retirement Community" ("the Letters Rogatory Petition"). The purpose of the Letters Rogatory Petition was for Ms. Fein to obtain certain records from Lions Gate. JS 13.

14. Judge Cronin granted the Letters Rogatory Petition. JS 14.

15. Sometime in July 2010, Terry M. Henry, Esquire, an attorney at Cozen O'Connor (the law firm at which Respondent was employed at that time), who worked at the Cherry Hill, New Jersey office, filed the necessary paperwork in the Superior Court of New Jersey, Law Division, Camden County ("the Superior Court of NJ"), to obtain the issuance of a Subpoena Duces Tecum ("the Lions Gate subpoena"). This matter was docketed at L-3739-10. JS 15.

16. The Honorable Ronald J. Freeman of the Superior Court of N.J. approved the issuance of the Lions Gate subpoena. JS 16.

17. The Lions Gate subpoena required the custodian of records of Lions Gate to produce the following documents:

All records reflecting communication that the Lions Gate Continuing Care Retirement Community marketing department had with Bernice Fein (aka Bernice Fein Moskowitz) and/or Leonard Moskowitz and/or representatives thereof about moving to Lions Gate including, without limitation, records reflecting an appointment which took place on June 4, 2006 at the Lions Gate marketing offices with Stephanie Reese, a residency counselor, and communications and discussions about moving and/or retiring to Lions Gate which continued through March 2009. JS17.

18. Respondent received the Lions Gate subpoena. JS 18.

19. On August 10, 2010, Respondent sent an e-mail to counsel for Lions Gate, M. Zev Rose, Esquire, with the law firm of Sherman Silverstein, in which Respondent, inter alia:

a. stated that he was "[f]ollowing up on our conversation in June regarding obtaining records from Lions Gate to assist my mother in an estate dispute pending in Pennsylvania";

b. attached the Lions Gate subpoena;

c. advised that "Bess Soffer in the marketing department is aware of the records which are needed";

d. requested a "letter from the Custodian of Records on Lions Gate letterhead enclosing the requested documents" be sent "as soon as possible" to Mr. Henry, with the letter scanned and e-mailed to Respondent; and

e. provided Respondent's e-mail address. JS19.

20. On August 18, 2010, Respondent sent an e-mail to Mr. Rose in which Respondent, inter alia:

a. stated that he was "following up on the subpoena for Lions Gate";

b. advised that the return date on the Lions Gate subpoena was August 16th; and

c. asked that he "check with Lions Gate and let [him] know when we can expect the documents...."

JS 2O.

21. On August 23, 2010, Respondent received an e-mail from Jeffrey P. Resnick, Esquire, with the law firm of Sherman Silverstein, in which Mr. Resnick attached records from Lions Gate responsive to the Lions Gate subpoena. JS 21.

22. The attachment to Mr. Resnick's e-mail consisted of three pages of notes, containing twenty-nine entries. JS 22.

23. After...

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