Office of Disciplinary Counsel v. Lucarini

• Decision Date: 14 October 1983
• Citation: 504 Pa. 271,472 A.2d 186
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Robert S. LUCARINI, Respondent.
• Court: Pennsylvania Supreme Court

Page 186

472 A.2d 186

504 Pa. 271

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Robert S. LUCARINI, Respondent.

Supreme Court of Pennsylvania.

Argued June 29, 1983.

Decided Oct. 14, 1983.

[504 Pa. 273] Barbara S. Rosenberg, Asst. Disciplinary Counsel, Philadelphia, for petitioner.

Samuel C. Stretton, West Chester, for respondent.

OPINION OF THE COURT

HUTCHINSON, Justice.

This matter is before us on Disciplinary Counsel's and respondent's cross-exceptions to our Disciplinary Board's report in which a majority of the Board recommended respondent's suspension from the practice of law for two years. ¹ Disciplinary Counsel contends respondent must be disbarred because he converted clients' funds. While respondent admits he commingled clients' funds, he argues that discipline harsher than public censure is inappropriate because his conduct, while not excused, was mitigated as the product of his self-confessed alcoholism. He points out that he recognized that problem, sought help and treatment for it and began recovery from it by abstaining before these proceedings began. Moreover, he argues no client suffered actual loss from his commingling and that his alcoholic rehabilitation shows suspension is unnecessary to protect the public. We agree that respondent should be disbarred because claimant's continuing unethical conduct after this investigation began leads us to believe his continued practice is likely to pose a danger to the public. His continued concealment of his juggling of clients' funds after this investigation began and especially his unwillingness to release the names of current clients to the Board so that the records he submitted in support of his assertion that all current client funds were accounted for could be verified by audit procedures normal in the accounting profession leaves us unconvinced of his total honesty with himself and the Board. Under such circumstances the admitted conversion of client funds is insufficiently mitigated to avoid disbarment. Therefore, we hold respondent must be disbarred for the protection of the public.

These proceedings began when the Office of Disciplinary Counsel filed a Petition for Discipline against respondent on November 24, 1981. That petition set out four charges detailing conduct constituting violations of several Disciplinary Rules of the Code of Professional Responsibility. ² On December 28, 1981, respondent filed an answer which admitted all the charged violations of the Disciplinary Rules except that alleging violation of DR 1-102(A)(3) (illegal conduct involving moral turpitude). His answer also contained affirmative defenses as evidence of his reform and rehabilitation and in mitigation of the violations. The case was assigned to a Hearing Committee of the Board, which held hearings on April 6, 7 and 22, 1982. Because respondent had admitted the disciplinary violations, the hearings were combined to determine the facts underlying the disciplinary violations and the extent of discipline to be imposed.

The Hearing Committee filed its report on January 10, 1983, with two members recommending a one-year suspension and the third member recommending a two-year suspension. Both Disciplinary Counsel and respondent filed exceptions with the Board, and a three-member panel of the Board heard oral argument. On May 25, 1983 the Board filed its Report and Recommendation with our Court. As noted, the majority of the Board recommended a two-year suspension, while three members dissented and recommended a one-year suspension and two members recommended only public censure. ³ Both Disciplinary Counsel and respondent filed exceptions to this Court, we heard oral argument on June 29, 1983 ⁴ and entered an order disbarring respondent on July 1, 1983, 462 A.2d 206, with this opinion to follow. In it we now set forth the reasons which lead us to determine that disbarment was the appropriate discipline on the facts of this case.

At the outset we note that our review in attorney discipline cases is de novo. Thus we are not bound by the findings of the Hearing Committee or the Disciplinary Board, except as guidelines for judging the credibility of witnesses. Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981); Matter of Green, 470 Pa. 164, 368 A.2d 245 (1977). In the present case, however, respondent has admitted his misconduct. Hence there are no factual disputes. Thus we see no basis for disturbing the Board's findings of fact, which we now summarize.

Charge I relates to respondent's representation of Dorothy and Edward Cameron in a personal injury action arising from an automobile accident in which Mrs. Cameron was injured. The Board found that respondent had represented to the Camerons that their claim had been settled for an amount higher than the actual settlement. Respondent obtained the Camerons' signatures on a release which reflected the higher amount, then placed the Camerons' signatures on the settlement draft for the lower amount actually offered by the insurer without the knowledge or consent of the Camerons.

Charge II, also arising from the Cameron case, relates to respondent's handling of the settlement funds. The Board found that the funds were deposited in an account labeled "escrow account" from which respondent subsequently made withdrawals for his own use without the knowledge or permission of the Camerons. As a result of the withdrawals, the balance in the account fell below the amount necessary for a full distribution to the Camerons and one of Mrs. Cameron's treating physicians. The Board further found that the funds ultimately used to pay the Camerons belonged to other clients and were improperly withdrawn from escrow. Moreover, respondent had withheld from the Camerons certain monies owed to Mrs. Cameron's physician and used this money for his own purposes. Despite the fact that the money had not been paid to the doctor, respondent showed it as paid on the Statement of Distribution which he gave the Camerons. The money was later paid only after Disciplinary Counsel inquired into the matter.

Charge III alleges that on two occasions respondent intentionally misrepresented to Disciplinary Counsel that he had not converted funds belonging to the Camerons and Mrs. Cameron's physician, and that at all times he had funds sufficient to cover the amount owed to the Camerons. The Board found that respondent knew he had converted the funds and that his escrow account was insufficient to cover monies owed when he made these representations to Disciplinary Counsel.

Finally, Charge IV alleges a general pattern of conduct during a two year period (1978-1980) in which respondent repeatedly commingled funds belonging to clients with his own funds; converted funds belonging to clients for his own use without their knowledge or permission; failed to maintain funds in escrow adequate to meet his obligations to his clients and failed to notify clients of the receipt of their funds or to promptly account for these funds to his clients.

The Board found that the conduct alleged in the four charges which respondent admitted constituted violations of the following Disciplinary Rules as paraphrased:

DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation);

DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law);

DR 9-102(A) (all client funds paid to a lawyer shall be placed in one or more identifiable bank accounts in the state where the law office is situated and no funds of the lawyer shall be deposited in it);

DR 9-102(B)(1) (a lawyer shall promptly notify a client of the receipt of his funds, securities or other properties); DR 9-102(B)(3) (a lawyer shall maintain complete records of all funds, securities and other properties of clients and render appropriate accounts to a client regarding them); and

DR 9-102(B)(4) (a lawyer shall promptly deliver to the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive). ⁵

Respondent presented evidence of mitigating circumstances and of his rehabilitation before both the Hearing Committee and the Board. That evidence was summarized by the Board:

In determining what was appropriate discipline, the Hearing Committee took into account mitigating circumstances including: (1) that Respondent's misconduct occurred during a time when he was suffering from alcoholism; (2) Respondent appears to be progressively recovering from alcoholism; (3) Respondent has paid back all clients and others all monies due them; (4) Respondent has retained an accountant who has set up a Safeguard accounting system which is adequate to preserve the integrity of Respondent's clients' escrow account, notwithstanding that Respondent does not implement the recommended system in all respects; and (5) his psychiatrist, several practicing attorneys who are friends of Respondent, and other practicing attorneys who are associated with Alcoholics Anonymous have agreed to monitor Respondent's practice.

Report and Recommendation of the Disciplinary Board, Majority Opinion at 12. Although both the Hearing Committee and the Board considered this evidence in determining what discipline was appropriate, both panels agreed that respondent's alcoholism did not excuse his conduct.

In recommending a two year suspension for respondent, the Board held that Office of Disciplinary Counsel v. Knepp, supra and Office of Disciplinary Counsel v. Lewis, supra were "determinative" in this case. Report and Recommendation of the Disciplinary Board, Majority Opinion at 12. Both of these cases involved factual situations similar to the present case, and both cases resulted in the disbarment of the respondent attorneys. ⁶ Disciplinary Counsel contends that it was inconsistent for the...