Office of Disciplinary Counsel v. Weinste (In re In), No. 2038 Disciplinary Docket No. 3

CourtUnited States State Supreme Court of Pennsylvania
PartiesOFFICE OF DISCIPLINARY COUNSEL Petitioner v. BRETT B. WEINSTEIN Respondent
Decision Date03 March 2014
Docket NumberNo. 54 DB 2011,No. 2038 Disciplinary Docket No. 3

OFFICE OF DISCIPLINARY COUNSEL Petitioner
v.
BRETT B. WEINSTEIN Respondent

No. 2038 Disciplinary Docket No. 3
No. 54 DB 2011

DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

March 3, 2014


ORDER

PER CURIAM:

AND NOW, this 28th day of July, 2014, upon consideration of the Report and Recommendations of the Disciplinary Board dated March 3, 2014, the Petition for Review and response thereto, it is hereby

ORDERED that Brett B. Weinstein 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.

A True Copv Patricia Nicola
As Of 7/28/2014

Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania

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Attorney Registration No. 78665

(Montgomery County)

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 8, 2011, Office of Disciplinary Counsel filed a Petition for Discipline against Respondent, Brett B. Weinstein, at No. 54 DB 2011. The Petition alleged that Respondent participated in the unauthorized practice of law by allowing laypersons 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 or of his conflicts of interest; and he generally engaged in conduct involving dishonesty, fraud, deceit and misrepresentation. Respondent filed an Answer to Petition on May 23, 2011.

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Simultaneous to the filing of the instant Petition, Petitioner filed a factually-related Petition against Barry O. Bohmueller, another member of the Pennsylvania Bar, alleging that he 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, and July 24 and July 26, 2012. The record was supplemented by deposition testimony on July 9, 2012 and September 19, 2012. Closing arguments were held 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 Conduct, 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 disbarred from the practice of law.

Respondent filed a Brief on Exceptions on October 2, 2013 and requested oral argument before the Board.

Petitioner filed a Brief Opposing Exceptions on October 18, 2013.

Oral argument was held before a three-member panel of the Disciplinary Board on December 6, 2013.1

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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:

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 Brett B. Weinstein. He was born in 1968 and was admitted to practice law in the Commonwealth in 1996. He maintains his office at 705 West DeKalb Pike, King of Prussia, PA 19406, and 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 1999 or 2000, Respondent was associated with an estate planning business known as ALMS, drafting trusts that had been sold to senior citizens by nonlawyers. (N.T. 3/7/12 at 7-8, 16-17; 7/26/12 at 199-200)

5. On April 18, 2000, Petitioner issued DB-7 Requests to Respondent regarding clients' complaints. (ODC -190)

6. Respondent responded on August 27, 2000.

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7. On February 16, 2001, Petitioner issued a letter of concern regarding Respondent's responses to the DB-7 Requests. (ODC-127)

8. In 2001, Respondent signed an Assurance of Voluntary Compliance with the Attorney General of Pennsylvania ("AVC"), agreeing to refrain from such conduct in the future. (ODC-128)

9. On May 3, 2002, Petitioner gave notice to Respondent by letter that Petitioner had dismissed a complaint by the Allegheny County Bar Association in relation to an AVC with the Office of Attorney General. (ODC-129)

10. Respondent signed an Interim Consent Decree dated December 14, 2004, in the case of Commonwealth of Pennsylvania v. Estate Planning Advisors, Brett B. Weinstein and Barry O. Bohmueller. et al., No. 74 MD 2004 (Pa. Cmwlth.), which states, inter alia, that "Defendant Weinstein will continue to refrain from authorizing and utilizing laypersons to provide legal advice to his clients." (ODC-211)

11. On October 17, 2005, the Disciplinary Board deferred the disciplinary investigation proceedings, but directed that Respondent "shall not engage in or provide the type of work that is the subject of the DB-7 Request and the substantially similar and related pending civil actions." (ODC-185)

12. In 2001, Respondent became the Pennsylvania "Plan Attorney" for various estate planning businesses such as American Family Prepaid Legal Corporation and Heritage Marketing & Insurance. These businesses were operated by Jeffrey Lewis Norman and his father. (ODC-106 at 9-10, 13-15, 35, 42-43; ODC-135 at 4, 7)

13. The companies' "primary target market" was senior citizens 65 and older. (ODC-106 at 9.10, 13 - 15, 35, 42-43; ODC-135 at 4, 7)

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14. Respondent received $300 per referral from American Family. In 2002, American Family paid Respondent $187, 275. (ODC-161; N.T. 7/26/12 at 226-229)

15. American Family representatives were paid a commission of $625 to $750 for each "membership" they obtained. (ODC-106 at 196)

16. In May 2005, Respondent's law office drafted trusts for 107 Pennsylvania residents. (ODC-94, pages dated May 23, 2005) In 2007, Respondent acknowledged that he had 400 referrals from estate planning companies. (N.T. 3/27/13 at 257-59)

17. One of American Family and Heritage's "industry and market challenges" was identified as "Investigations initiated by local and state authorities." (ODC-135 at 27, 51, 53)

18. The Heritage Insurance salesperson's title was "Asset Preservation Specialist."

19. During the period it operated in Pennsylvania, Heritage sold annuities to 1,500 to 2,000 consumers, some of whom may have purchased multiple policies. (ODC-106 at 43-44)

20. In 2003 - 2004, Gary Shade, a Financial Investigator for the Office of the Attorney General, began an investigation into the activities and operations of Estate Planning Advisors (EPA). EPA was an estate planning business operated by Brian Newmark, a former employee of ALMS. (N.T. 12/7/11 at 78-100; ODC-164A; ODC-17)

21. Investigator Shade found that EPA was marketing itself to senior citizens as being comprised of highly trained advisors in the field of estate planning, and the principal message was that it was advantageous for senior citizens to "avoid probate" by means of a revocable living trust. (N.T. 12/7/11 at 78-100; ODC-164A; ODC-17)

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22. In 2005, Investigator Shade, working undercover, bought a Weinstein revocable living trust from a representative of Kaehall Estate Planning Coordinators (Kaehall). (ODC-164B)

23. The nonlawyer representative made a presentation to Investigator Shade about the benefits of living trusts and the disadvantages of probate and gave him a brochure about living trusts, which invited clients to call the "trained staff' at Kaehall with any questions. (ODC-164B)

24. The representative asked Investigator Shade to have his financial papers with him at the time the trust was delivered. (N.T. 12/7/11 at 127-38)

25. Investigator Shade received a five-minute call from Respondent to confirm his information, and, as far as legal advice and counseling, Respondent told Shade that a "living will" was a legal document with "boxes to check." (N.T. 12/7/11 at 127-38)

26. Investigator Shade had no further contact...

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