Office of Disciplinary Counsel v. Keller

• Decision Date: 21 March 1986
• Citation: 506 A.2d 872,509 Pa. 573
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. John J. KELLER, Respondent.
• Court: Pennsylvania Supreme Court

Page 872

506 A.2d 872

509 Pa. 573

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. John J. KELLER, Respondent.

Supreme Court of Pennsylvania.

Argued Oct. 22, 1985.

Decided March 21, 1986.

Richard J. Orloski, Allentown, for respondent.

Albert M. Nichols, Chief Counsel, John W. Herron, Asst. Disciplinary Counsel-in-charge, Alan J. Davis, Asst. Disciplinary Counsel, Philadelphia, for petitioner.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

We are here called upon to consider the recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania (hereinafter "Board") that Respondent, John J. Keller, be disbarred from the practice of law in the Commonwealth of Pennsylvania. The Board found, inter alia, violations of Disciplinary Rule 1-102(A)(3) (illegal conduct involving moral turpitude) and Disciplinary Rule 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation). ¹ After hearing testimony in the matter, the Hearing Committee recommended the imposition of the sanction of disbarment. The Board, after review of the entire matter, adopted that recommendation and recommended further that Respondent be ordered to pay the cost of the investigation and prosecution of this matter. Pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 208(e) we are now called upon to determine the appropriate sanction, if any, to be imposed in this matter. For the following reasons we are constrained to conclude that the sanction of disbarment is appropriate and, therefore, accept the recommendation of the Board. ²

The instant petition for discipline alleged professional misconduct with reference to two charges. Charge I relates to the Respondent's handling of the Estate of Mary Griffith. Charge II concerns Respondent's representation of Mr. and Mrs. James Molinaro with reference to the sale of their home. Hearings on the charges were held before a hearing committee and testimony was received on June 7, 1983, September 7, 1983, October 11, 1983, October 19, 1983 and December 8, 1983. Respondent was represented throughout by counsel. The report of the Hearing Committee was filed January 25, 1985 in which the Hearing Committee adopted sixty findings of fact proposed by the Petitioner and nine findings of fact proposed by the Respondent. The Hearing Committee concluded that Respondent violated ten disciplinary rules including DR 1-102(A)(3) and DR 1-102(A)(4). The Committee recommended to the Board that Respondent be disbarred.

Petitioner and Respondent subsequently filed briefs with the Disciplinary Board and oral arguments were heard before a three-member panel of that body. On May 21, 1985 the Board issued its report in which it adopted the findings of fact of the Hearing Committee, modified certain Conclusions of Law and concurred in the recommendation of disbarment. In its Conclusions of Law the Board, inter alia, affirmed the conclusion reached by the Hearing Committee that Respondent had violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(4). ³ Briefs were filed by both parties in this Court and Respondent timely filed a request pursuant to Pa.R.D.E. 208(e)(2) requesting oral argument which was granted. The matter is now ripe for decision.

Charge I averred that Respondent had forged the endorsement on a check drawn on the account of an estate represented by Respondent and made payable to a Ms. Miriam Scheetz, a beneficiary of the estate in question. It is alleged that Respondent deposited that check with the forged endorsement in his trust account and thereafter converted those proceeds to his own use. Further, Respondent commingled his own funds with entrusted funds to make restitution from his trust account for the monies due to Miriam Scheetz. Finally, Respondent misrepresented to his client, the Administrator of the Estate, the cause for Ms. Scheetz's not having promptly received said monies.

Charge II averred that Respondent wrongfully withheld $10,400 from the proceeds of a real estate settlement. This amount was to be used for paying off the seller's mortgage, the payment of taxes and a water bill, and payment of a title insurance premium. Respondent deposited these funds in his trust account and subsequently converted them to his own use. Respondent neglected to pay those obligations for which the funds were being held in a timely fashion. Subsequently, he commingled his own funds with the remaining portion of the entrusted funds in order to pay the aforementioned obligations. Finally, Respondent failed to remit the title insurance premium to the title insurance company.

In response to these charges, Respondent attempts to frame an argument challenging the sufficiency of the testimony to support the Board's Conclusions of Law. This argument, as will be seen from our discussion, is a little more than a transparent makeway. The real defense in this matter is the contention that this misconduct would not have occurred but for the serious mental and emotional disfunction that Respondent was experiencing during the period of time in which this misconduct occurred. Respondent is in fact urging that the sanction of disbarment, in view of his emotional condition at the time, is too harsh a result and has urged this Court to consider the imposition of a period of suspension.

To fully understand the thrust of Respondent's principle argument, it is necessary for us first to discuss the difference between suspension and disbarment. These are the two most severe types of discipline that this Court is empowered to impose for misconduct by a member of our bar. ⁴ Both of these punishments involve the withdrawal of the offending attorney's privilege to practice law before the courts of this Commonwealth. Suspension is the withdrawal of the privilege of practicing law for a specified period not to exceed five years. Disbarment requires the withdrawal of the privilege for at least five years. See Pa.R.D.E. 218(b).

However, the distinction between these two sanctions is more than a quantitative one. There is a qualitative difference between these sanctions. Although reinstatement is provided for in the case of suspension (exceeding three months) and disbarment, Pa.R.D.E. 218, the entitlement to reinstatement under the two sanctions is materially different. In the case of suspension the withdrawal of the privilege to practice law is for a specified period of time. After the expiration of that period a suspended attorney can resume the practice of law upon a demonstration of his or her fitness to practice. In contrast, where disbarment has been imposed, the length of the withdrawal of the privilege to practice law has not been previously determined. In disbarment the only expression as to the length of the withdrawal of the license to practice is that it must extend for a period of at least five years.

The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system. See In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981); Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). Disciplinary procedures have been established as a catharsis for the profession and a prophylactic for the public. Office of Disciplinary Counsel v. Lewis, supra 493 Pa. at 528, 426 A.2d at 1142. In the case of disbarment there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time. When reinstatement is sought by the disbarred attorney, the threshhold question must be whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon "the integrity and standing of the bar or the administration of justice nor subversive of the public interest." Pa.R.D.E. 218(c)(3)(i). ⁵ It is because of this very real distinction between suspension and disbarment that Respondent here urges a sanction of suspension, even for the maximum period, rather than disbarment.

Before analyzing the testimony offered in support of the charges it must be noted that this Court's review of attorney discipline is a de novo one. Thus, we are not bound by the findings of either the Hearing Committee or the Disciplinary Board. Matter of Green, 470 Pa. 164, 368 A.2d 245, (1977); Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976); Office of Disciplinary Council v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976). Although we are free to evaluate the evidence presented before the Hearing Committee, In re Silverberg, 459 Pa. 107, 327 A.2d 106 (1974), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982), we may be enlightened by the decisions of these triers of fact who had the opportunity to observe the demeanor of the witnesses during their testimony. Matter of Green, supra; Office of Disciplinary Council v. Walker, supra; Office of Disciplinary Counsel v. Campbell, supra. The evidence is sufficient to prove ethical misconduct if a preponderance of that evidence establishes the charged violation and the proof is clear and satisfactory. Office of Disciplinary Counsel v. Kissel, 497 Pa. 467, 442 A.2d 217 (1982); In re Berlant, 458 Pa. 439, 328 A.2d 471 (1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1953, 44 L.Ed.2d 451 (1975). Nor is the petitioner required to establish the misconduct through direct evidence. The ethical violations may be proven solely by circumstantial evidence. Office of Disciplinary Counsel v. Grigsby, supra; Lemisch's Case, 321 Pa. 110, 184 A. 72 (1936); Salus's Case, 321 Pa. 106, 184 A. 70 (1936).

Under Charge I evidence was introduced to establish that Mary Griffith died on September 12, 1980...