Office of Disciplinary Counsel v. Bohmueller, J-96-2014

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtPER CURIAM
Docket NumberNo. 2039 Disciplinary Docket No. 3,No. 53 DB 2011,J-96-2014
PartiesOFFICE OF DISCIPLINARY COUNSEL, Petitioner v. BARRY O. BOHMUELLER, Respondent
Decision Date23 January 2015

OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
BARRY O. BOHMUELLER, Respondent

J-96-2014
No. 2039 Disciplinary Docket No. 3
No. 53 DB 2011

SUPREME COURT OF PENNSYLVANIA

Argued: November 18, 2014
January 23, 2015


Attorney Registration No. 79901
(Montgomery County)

PER CURIAM:

ORDER

AND NOW, this 23rd day of January, 2015, upon consideration of the Report and Recommendations of the Disciplinary Board dated March 25, 2014, and following oral argument, it is hereby

ORDERED that Barry O. Bohmueller 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.

Mr. Chief Justice Saylor, Madame Justice Todd, and Mr. Justice Stevens join the order.

Messrs. Justice Eakin and Baer dissent in favor of a five-year suspension.

Judgment Entered January 23, 2015.

/s/_________
Deputy Prothonotary

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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

By Petition for Discipline filed on April 8, 2011, Office of Disciplinary Counsel charged Barry O. Bohmueller with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement. Petitioner alleged that Respondent participated in the unauthorized practice of law by allowing lay persons to counsel his clients; he failed to communicate properly with his clients concerning their individual estate planning; he failed to inform clients of fee sharing and of his conflicts of interest; and he engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, including the purposeful

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omission of two of his four IOLTA accounts from his annual attorney registration forms, Respondent filed an Answer to Petition for Discipline on May 23, 2011.

Simultaneous to the filing of the instant Petition for Discipline, Petitioner filed a factually-related Petition against Brett B. Weinstein, who was alleged to have acted in cooperation with Respondent. The cases were consolidated for disciplinary hearing. Separate Hearing Committee Reports were filed.

Following a pre-hearing conference on August 19, 2011, hearings were held before a District II Hearing Committee comprised of Chair Michael J. Malloy, Esquire and Members Mason Avrigian, Sr., Esquire, and Philip M. Hof, Esquire. The hearings took place on December 7 and December 8, 2011, March 7 and March 8, 2012, July 24 and July 26, 2012. Deposition testimony was taken on July 9 and September 19, 2012. Closing arguments were heard on December 18, 2012. Following the Hearing Committee's determination that Petitioner had established a prima facie violation of at least one Rule of Professional Conductor Rule of Disciplinary Enforcement, a dispositional hearing was held on March 27, 2013.

Following the submission of briefs by the parties, the Hearing Committee filed a Report on August 1, 2013 and recommended that Respondent be suspended for a period of two years.

No Briefs on Exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on January 15, 2014.

II. FINDINGS OF FACT

The Board makes the following findings of fact:

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1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, 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 Barry O. Bohmueller. He was born in 1966 and was admitted to practice law in the Commonwealth in 1997. He maintains his office at 29 Mainland Road, Mainland VLG, Harleysville, Pennsylvania 19438. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. Respondent has no history of discipline in Pennsylvania.

4. In August or September of 1999, Respondent was introduced to Brian Newmark, a non-lawyer who operated a business known as Estate Planning Advisors (EPA). Mr. Newmark's business was focused on making sales presentations to senior citizens about the benefits of living trusts. (ODC-115 at 32, 35-37, 49, 65, 67, 291; 89, 132, 292-293, 386) Previous to operating EPA, Mr. Newmark worked with Advanced Legal Systems (ALMS), where he engaged in similar activities selling living trusts and annuities. Brett B. Weinstein, Esquire was a "referral attorney" at ALMS.

5. Mr. Newmark contacted Respondent after receiving the contact information from Mr. Weinstein, who was a law school friend of Respondent. Mr. Newmark talked to Respondent about "having a referral relationship." Soon after Mr. Newmark and Respondent met, they "formed a relationship" whereby Mr. Newmark began promoting,

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marketing and selling living trusts for Respondent. (ODC-115 at 291, 319, 321) Respondent admits that he worked with EPA until the beginning of 2004. (N.T. 12/7/11 at 78-100; ODC-6, 4/30/04 at 245; ODC-164A; ODC-17)

6. In August 1999, Respondent leased a "virtual office" at 900 E. Eighth Avenue, Suite 300, King of Prussia, PA 19406, upon which Mr. Weinstein made the down payment. (ODC-1A; N.T. 7/26/12 at 257-258)

7. A "Start Up Form" for the rental of the virtual office reflects that Respondent's "billing address" was 707 W. DeKalb Pike, Suite 2, King of Prussia, PA 19406 (ODC-1B). This was identified as Mr. Weinstein's office address. (ODC-3, 9/19/05 at 193-94)

8. Respondent termed the "virtual office" at 900 E. Eighth Avenue as his "formal mailing address," but he did not have a desk and chair at that location and used it only occasionally for meetings. (ODC-3, 9/19/05 at 186-187)

9. From 2000 to 2004, Respondent shared office space at Mr. Weinstein's office. (ODC-6, 2/20/04 at 127; 4/30/04 at 311)

10. Respondent kept his files at Mr. Weinstein's office, and the facsimile number of his letterhead was identical to Mr. Weinstein's facsimile number. (ODC-6, 2/20/04 at 119-21, 144-46)

11. Respondent's letterhead and advertising stated that his office address was 900 E, Eighth Avenue, Suite 300, King of Prussia PA 19406, and they did not include the address of Mr. Weinstein's office. (ODC-16; ODC-54)

12. When Respondent was asked in interrogatories in civil litigation what his office address was, he gave the "virtual office" address as 900 East Eighth Avenue. (ODC-180 at 64)

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13. Respondent's Pennsylvania Attorney Annual Fee Form for the years 2000-2001; 2001-2002; 2002-2003; 2003-2004; and 2004-2005 stated that the "Primary Location of Lawyer" was "Bohmueller Law Offices, 900 E. 8th Ave, Ste, 300, King of Prussia PA 19406." (ODC-131)

14. The sign outside of 707 W. DeKalb Pike stated "Weinstein Law Offices, LLC," but there was no sign with Respondent's name on it. (ODC-3, 9/30/05 at 34)

15. During the time Respondent shared office space with Mr. Weinstein, Respondent had no secretary, paralegal, bookkeeper or associate attorney, and relied on Mr. Weinstein's staff. (ODC-3, 9/20/05 at 25-26)

16. According to Respondent, he and Mr. Weinstein had an "informal oral agreement" whereby Respondent would pay for the shared office space, office staff, reimbursement for supplies and telephone usage. (ODC-6, 4/30/04 at 342-43)

17. Respondent and Mr. Weinstein decided what payments Respondent made to Mr. Weinstein for the office sharing arrangement, "[t]hrough conversations." (ODC-6, 4/30/04 at 342-43)

18. Respondent used Mr. Weinstein's office staff to generate estate planning documents for Respondent, including powers of attorney, healthcare powers of attorney, living wills, pour-over wills, and revocable living trusts. (ODC-6, 4/30/04 at 321-27)

19. EPA marketed itself and Respondent through direct mail and held seminars at restaurants where senior citizens were provided a free meal and were told that probate was something that senior citizens must avoid. (N.T. 12/7/11 at 86, 88-89, N.T. 3/7/12 at 28-29)

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20. EPA held itself out as a business comprised of highly trained advisors in the field of estate planning. (N.T. 12/7/11 at 78-100; ODC-6, 4/30/04 at245; ODC-164A; ODC-17)

21. When senior citizens expressed interest in living trusts by responding to EPA's solicitations, EPA dispatched a non-attorney to the individual's home to discuss estate planning.

22. Victoria Larson and John Wight worked for EPA.

23. Ms. Larson was credible and provided...

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