Office of Disciplinary Counsel v. Price

• Decision Date: 24 June 1999
• Citation: 732 A.2d 599,557 Pa. 166
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Neil Werner PRICE, Respondent.
• Court: Pennsylvania Supreme Court

557 Pa. 166

732 A.2d 599

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Neil Werner PRICE, Respondent.

Supreme Court of Pennsylvania.

Argued April 27, 1999.

Decided June 24, 1999.

Mark G. Weitzman, Pittsburgh, for Disciplinary Board.

Neil Werner Price, Johnstown, Pro Se.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

This disciplinary matter commenced with the filing of a Petition for Discipline by the Office of Disciplinary Counsel on August 1, 1995. Respondent, Neil Werner Price, was therein charged with filing court documents that contained false allegations against two District Justices and an Assistant District Attorney. He was also charged with completing portions of Department of Public Welfare (DPW) forms designated to be completed by a medical provider and signing the forms as "Dr. Neil Price, J.D." The Hearing Committee and the Disciplinary Board found that Respondent committed various disciplinary violations and recommended that he be suspended from the practice of law for a period of at least one year and one day. Upon independent review of the record, we conclude that Respondent engaged in the alleged misconduct and hold that the appropriate sanction is a five-year suspension from the practice of law.

The first charge of misconduct involves various written assertions Respondent made in three court documents. To understand the nature of the documents filed, a brief factual background is necessary. On July 24, 1990, Judge Caram Abood of the Cambria County Common Pleas Court issued an order directing that District Justice Rick Farra recuse himself from all matters involving parties represented by Respondent. The order was based on the fact that District Justice Farra was a Commonwealth witness in a then pending criminal proceeding against Respondent.¹ On September 3, 1991, an order was entered vacating the recusal order. On September 6, 1991, Respondent filed a "Motion for Reconsideration" of the order vacating recusal, wherein he asserted that

due to the case circumstances, it is axiomatic that either Justice Farra eagerly participated in an undercover effort against Attorney Price, inducing him to deliver contraband arguably constituting a crime, thus creating a crime, OR [sic] Justice Farra eagerly reported an otherwise unreportable offense to curry favor with the state police and attorney general, either situation exhibits a running, bitter controversy that necessitates recusal.

On March 29, 1993, while representing Thomasine Darr in a landlord/tenant action brought by John Anthony, Respondent filed with District Justice Farra a document entitled "Notice of Jurisdictional Defect." Therein, Respondent implied that District Justice Farra authorized Anthony's complaint because Anthony was a former state trooper. He went on to state, "Favoring a state trooper comrade to the extent of colluding in their baseless suits is a form of OFFICIAL OPPRESSION, within the meaning of 18 Pa.C.S. 5301(1)...."

On April 14, 1993, Respondent filed in the Cambria County Common Pleas Court a document entitled, "Notice of Objections to Jurisdiction; Demand for Dismissal of Complaint; Demand for Writs of Habeas Corpus Ad Testificandum; Demand for I.F.P. Status." Respondent filed this document in response to criminal charges that had been filed against him as a result of an incident which occurred in District Justice Farra's office earlier that month.² Respondent therein asserted that District Justice Allen Berkheimer "abused his office by seeking to fix citations from other jurisdictions," "assumed a prosecutorial bias to ingratiate himself with disciplinary and other authorities," and "bothered several constituents with sexually harassing contacts." He further alleged that District Justice Farra's "coercion over various law enforcement or political officials, including those presumably superior to the former's position is well known." Finally, Respondent asserted that Assistant District Attorney John Kalenish's "malice toward [Respondent] is partly explicable by [Respondent's] inadvertent discovery of J.R. Kalenish's embezzlement of a private client's judgment...."

The second charge of misconduct involves Respondent's completion and submission of two DPW Medical Assessment Forms, which are used to determine whether an individual is disabled for purposes of receiving public assistance benefits. Section II of the form designates that it is to be completed by a physician and includes sections for an evaluation of the claimant's physical/mental capacity and the physician's description of the diagnosis and functional limitations of the claimant.

Respondent completed a form dated September 15, 1992, wherein he asserted that his client, James Custer, was "incapacitated." Respondent described Custer's diagnosis, medications and functional limitations and inserted factual information regarding his medical care. In the area designated for the identification of the "medical provider" who prepared the form, Respondent signed, "Dr. Neil Price, J.D." Respondent listed the address of his law office as the address of the medical provider. He further listed the "date of last examination" as "9/15/92."

Respondent made similar assertions in a second DPW Medical Assessment form dated March 12, 1993, which he filed on behalf of his client, Mary E. Smith. Respondent asserted that Smith was "incapacitated" and described her diagnosis, medications and functional limitations. Respondent's name again appeared as "Dr. Neil Price, J.D." and Respondent's law office address was listed as the address of the medical provider. The "date of last examination" was listed as "3/12/93." Respondent concedes that he was not a physician or medical provider of any kind at the time the forms were completed.

Several evidentiary hearings on both charges of misconduct were held throughout 1996 and 1997. The Hearing Committee found that the assertions made in Respondent's court filings were either knowingly false or recklessly made without regard for their falsity. Accordingly, the Committee found that Respondent violated Rules of Professional Conduct 3.1 (lawyer shall not assert issue unless there is a basis for doing so that is nonfrivolous), 3.3(a)(1) (lawyer shall not knowingly make a false statement of material fact to tribunal), 8.2(b) (lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer), 8.4(c) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).

The Committee also found that the manner in which Respondent completed DPW forms violated Rules of Professional Conduct 4.1(a) (lawyer shall not knowingly make a false statement of material fact or law to a third person in the course of representing a client) and 8.4(c) (it is professional misconduct for a lawyer to engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The Disciplinary Board agreed with the Committee that Respondent violated the aforementioned Rules of Professional Conduct and also recommended a suspension of one year and one day.³

In attorney disciplinary matters, our review is de novo. We are not bound by the findings or recommendations of the Disciplinary Board, although we give them substantial deference. Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997). Because Respondent vehemently disputes the lower tribunals' finding that his allegations were without factual support, we begin our analysis with an examination of whether the assertions Respondent made in his court pleadings constitute "false statements" and "false accusations against a judge" in violation of Rules of Professional Conduct 3.3(a)(1) and 8.2(b), respectively. We also must determine whether the filling of the allegations amounted to "misrepresentation" in violation of Rule 8.4(c).

We first address a preliminarily matter regarding the placement of the burden of proof in such circumstances. We note that the burden of proving professional misconduct lies with the Office of Disciplinary Counsel. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). The Office of Disciplinary Counsel must prove the misconduct by a preponderance of the evidence and the proof must be clear and satisfactory. Id. It is well-established, however, that every court pleading containing an averment of fact not of record is required to state that the assertion is true based upon the pleader's personal knowledge, information or belief and shall be supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904. See Pa.R.C.P 1024; Pa.R.C.P. 76. In other words, the pleader in a court proceeding bears the burden of establishing a factual basis upon which his allegations are based. Similarly, the Comment to Rule 3.3(a)(1), which prohibits a lawyer from making false statements of material fact to a tribunal, states that

an assertion, purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.

Thus to establish a prima facie case of making false statements or accusations as set forth in Rules 3.3(a)(1) and 8.2(b), the Office of Disciplinary Counsel bears the initial burden of establishing that an attorney, based upon his own knowledge, made false allegations in a court pleading.⁴ This can be accomplished by presenting documentary evidence or testimony from the victims of the allegations stating that the allegations are false. The burden then shifts to the respondent to establish that the allegations are true or that he had an objective reasonable...