Lawyer May Have Kept ID Theft Charges From Current Firm

Zack Needles

The Legal Intelligencer

Attorney Robert N. Wilkey's employer was surprised to learn Friday that the associate it had hired from the plaintiffs boutique located a few floors up had been charged by Upper Saucon Township police with identity theft less than a week earlier.

The Lehigh County district attorney's office announced last week that Wilkey had been charged with three counts of first degree misdemeanor identity theft for allegedly using a client's personal information to apply for three credit cards.

According to the affidavit of probable cause, Wilkey, while working as an associate at Conshohocken, Pa.-based plaintiffs firm Pogust Braslow & Millrood, applied for three credit cards online using client Marco Orellana's identity, prosecutors said.

Harris L. Pogust, a founding partner of Pogust Braslow, told The Legal Intelligencer last week that the firm fired Wilkey about a year ago after being contacted by an Upper Saucon police officer regarding the criminal investigation.

Wilkey was subsequently hired as an associate at plaintiffs firm Villari Brandes & Kline, the main office of which is located in the same Conshohocken building as Pogust Braslow.

When The Legal Intelligencer contacted Villari Brandes co-founding partner Peter M. Villari Friday morning regarding the charges against Wilkey, he seemed caught off guard.

"Robert works with us," he said. "To be frank, I'm not up to speed on what you're referring to." On Friday afternoon, the firm sent a statement to The Legal Intelligencer regarding the situation.

"Per your request for a statement ... please be advised this matter was just brought to our attention today," the release said. "We have been assured that none of Mr. Wilkey's alleged conduct occurred during his employment with our firm. As to Mr. Wilkey, we are presently handling this matter internally, and have no further comment." According to the arrest affidavit, Wilkey told Upper Saucon Detective Joseph Pochron he met Orellana while the two attended the same church and, through that relationship, took Orellana on as client.

Pogust told The Legal Intelligencer Orellana was not a client of the firm's.

"I don't know what Robert was doing before he came here or on the side, but this didn't involve any of our clients," he said.

The affidavit said an investigation began on Feb. 24, 2009, when Orellana reported to Upper Saucon Township police that he had received two letters indicating that two Discover Card applications had been submitted and, upon contacting Discover, had learned that his personal information had been used to complete the applications without his knowledge.

Pochron contacted Discover Card Services and found that both applications listed Orellana's correct birth date and Social Security number, as well as an e-mail address, morellana1762@yahoo.com, which Orellana confirmed was not his, the affidavit said.

Pochron obtained subscriber records from Yahoo and found that the e-mail account had been accessed several times from two separate IP addresses, one of which he traced back to a computer at Pogust Braslow and the other of which belonged to a computer at Wilkey's residence.

Additionally, the mailing address used on the applications turned out to be a P.O. Box in Coatesville, Pa., registered to Wilkey, the affidavit said.

On July 16, 2009, Wilkey and his attorney, Kimberly F. Makoul of Goodge & Makoul in Allentown, Pa., met with Pochron, the affidavit said.

During that meeting, Wilkey admitted to Pochron that he had used Orellana's information to apply for two credit cards, one from Discover and one from Capital One, according to the affidavit.

Wilkey told Pochron he had received one of the cards in the mail and had planned to use it for financial transactions but couldn't because he was unable to activate it, the affidavit said.

It was unclear Tuesday whether Wilkey has entered a plea.

Wilkey, when contacted Tuesday, deferred comment to Makoul, who could not be reached.

On Oct. 16, 2009, police searched Wilkey's Coatesville residence and seized several computers, which were then sent to the Pennsylvania State Police Computer Crime Laboratory, the affidavit said.

According to the affidavit, the lab found remnants of a deleted "resolution agreement" indicating that Wilkey and Pogust Braslow had agreed to pay for an identity theft protection service called LifeLock as well any other expenses Orellana incurred because of the identity theft, if Orellana would agree to stop pressing charges.

On Feb. 19, 2010, Orellana told Pochron that Wilkey had given him the resolution agreement along with a $110 money order to cover one year of LifeLock but that he never deposited or cashed the check, the affidavit said.

Orellana gave Pochron the document and, according to the affidavit, it contained the same language as the one found on Wilkey's computer.

The document, according to the affidavit, said Orellana would promptly notify the Upper Saucon police of his decision not to pursue criminal charges and that Pogust Braslow would assume no criminal or civil liability.

But Pogust told The Legal Intelligencer last week that the firm had "never heard anything about that" and that it "had no idea, no clue that anything was going on" until it was contacted by Upper Saucon police about a year ago, after which Wilkey was promptly fired.

Before that, Pogust said, Wilkey, who was admitted to practice law in 2004, had worked at Pogust Braslow and its earlier incarnation, Cuneo Pogust & Mason, for a total of almost four years.

Pogust said the firm has "cooperated fully" with the police department's investigation of Wilkey.

"But they really didn't need much of anything from us," he added.

On March 11, 2010, according to the affidavit, Orellana received a credit report indicating three credit inquiries from Discover, Capital One and Chase/First USA.

Both Chase and Capital One provided Pochron with online applications they had received listing morellana1762@yahoo.com as the e-mail address, according to the affidavit.

Pochron then traced both of those applications back to an IP address associated with Wilkey, the affidavit said.

Wilkey was charged on May 25 with three counts of identity theft -- one for each credit card he allegedly applied for using Orellana's information -- and was arraigned before District Judge David Harding, according to the district attorney's press release.

He was released on $20,000 unsecured bail, with a preliminary hearing set for June 4, the press release said.

"Unfortunately, we've had lots of lawyers steal from their clients, but I don't know of anybody using this method," said Larry Fox, a former chair of the American Bar Association's standing committee on ethics and professional responsibility. "It's as reprehensible as if you do it by going into a client's trust fund." Fox, of Drinker Biddle & Reath, said that even if Wilkey were found innocent in a court of law, he could still incur heavy penalties from the state Supreme Court's Disciplinary Board if he's found to have violated the Rules of Professional Conduct.

According to Fox, Wilkey is entitled to a hearing before the disciplinary board in which he can argue mitigating factors and a subsequent appeal of the board's determination to the Supreme Court, if necessary.

But if, in the end, Wilkey's found to have violated state ethics rules, "a long suspension or disbarment would not be surprising," Fox said, adding that a criminal conviction results in automatic disbarment in Pennsylvania.

Fox said improper use of a client's personal information is "at the top of the list of things that the disciplinary people worry about." "We have access to our client's money and personal information and we've got an obligation not to abuse that," he said.