Two of the state’s Supreme Court justices have called for harsher punishment for repeat violators of the attorney disciplinary rules.
Justice Max Baer wrote a dissent cited in three disciplinary decisions in which the lawyers facing punishment received suspensions of between a year-and-a-day and 18 months. The dissent was joined by Justice Correale F. Stevens.
“I am bothered by respondent’s extensive recidivist history of disciplinary infractions, and believe that a suspension of one year and one day is inadequate to protect the public and ensure that this court and its Disciplinary Board is doing enough to maintain the public’s confidence in our profession,” Baer said in Office of Disciplinary Counsel v. Quinn.
His dissent in Quinn was noted in two other cases in which the Supreme Court ruled Monday, ODC v. Fick and ODC v. Reynolds.
“Accordingly, I respectfully call for the adoption of a more severe approach to sanctioning attorneys who have failed repeatedly to conform their conduct to the governing standards of the legal profession, and I would begin by imposing a suspension of three years in this case,” Baer continued in Quinn, noting his disagreement with the year-and-a-day suspension of Philadelphia attorney Thomas Russell Quinn.
Quinn’s most recent disciplinary action involved an alleged violation of Pennsylvania Rule of Professional Conduct 8.4(d), dealing with conduct that is prejudicial to the administration of justice. Quinn was sued by a former client who argued he should be refunded the fee he paid Quinn because Quinn didn’t address all of the client’s arguments in a Post-Conviction Relief Act petition. An arbitrator ruled in the client’s favor, Quinn appealed and then Quinn failed to comply with certain orders in the case from the trial court.
Quinn faced disciplinary actions in three other proceedings prior to the most recent incident. Those proceedings involved failing to file a memorandum of law in support of a habeas petition; failing to provide a client with a written fee agreement; failing to notify a client of a case outcome; and failure to file for pro hac vice access and then failing to take further action in that matter, according to the report and recommendation from the Disciplinary Board of the Supreme Court.
In each of the three cases, the board noted in its report and recommendation adopted by the Supreme Court the existence of prior discipline. The board also noted in various ways that the requirement to petition for reinstatement, which comes with any suspension over one year, satisfied its desire to punish repeat offenders who previously faced lesser sanctions.
The Disciplinary Board noted in its discussion in Quinn,for example, that Quinn’s prior disciplinary history worked against him.
“As respondent’s record grows, it becomes necessary to increase the level of discipline,” the board said in doling out the year-and-one-day suspension.
Baer acknowledged in his dissent that Quinn’s suspension was consistent with the board’s recommendation and the disciplinary sanctions imposed in similar cases. He also recognized that the suspension of a year and one day requires Quinn to petition for reinstatement, “allowing for full scrutiny of his character.” But Baer said he didn’t think the one-year period before that was enough in terms of punishment and to ensure Quinn would be a changed person.
“Left to my own devices, I would suspend [Quinn] for three years in recognition of his substantial and consistent disciplinary history,” Baer said. “It would be my hope that, after such period of time, [Quinn] would mature and recognize that his behavior must stop if he is readmitted. There should be no doubt that if [Quinn] would again appear before this court for disciplinary enforcement after being readmitted to practice law, I would disbar him.”
The Supreme Court noted in its orders in Reynolds and Fick that Baer would have granted a three-year suspension in each of those cases as well.
John W. Morris of Kaufman, Coren & Ress spent two terms on the Disciplinary Board in the late 1990s and early 2000s. Since then he has served as special master to the court and represented a number of attorneys before the board.
“The current board is a pretty strict group,” Morris said. “I think they are more strict than the board was when I was on there and I think in some cases they’ve been harsh.”
Morris also noted the year-and-a-day suspension is no small punishment, calling it a “major disruption” in an attorney’s life. Morris said the lawyers aren’t allowed to practice law in any way and most lawyers probably aren’t prepared for any other greatly gainful employment. And the lawyers are required to inform all of the clients of the suspension.
Petitioning for reinstatement involves a “pretty complicated process” that includes proof of moral character and evidence the attorney has taken appropriate courses, conducted himself well and has not committed unauthorized practice of law, Morris said.
“You really have to satisfy the board that you are a different person,” Morris said. “There are a number of turned-down examples of petitions for reinstatement.”
Though Morris noted he wasn’t familiar with the facts of these particular cases, he said he could understand justices saying they would call for harsher punishment in certain instances. But Morris said the board takes care to go through a hearing and deliberation process.
“I think they’ve been pretty fair and certainly not lenient in recent years,” Morris said.
Stevens & Lee shareholder James C. Schwartzman, who has long represented attorneys before hearing committees of the board, said what people unfamiliar with the system often fail to understand is that an attorney hit with a year-and-a-day suspension will be out of the practice for at least two-and-a-half to three years with no guarantee he or she will be reinstated. Schwartzman said the fastest he has seen a petition for reinstatement be resolved is 18 months. He noted that the bulk of the petitions are granted.
“The disciplinary system isn’t intended to be punitive for the lawyer involved, but, rather, it’s supposed to be a method of protecting the public,” Schwartzman said.
Schwartzman said the board has had the opportunity to hear from the respondent and often has a better insight than anyone else as to the appropriate punishment.
“The dissent that Justice Baer wrote will have an effect on the lawyer or lawyers involved when and if they do apply for reinstatement,” Schwartzman said. “The [Office of Disciplinary Counsel] will be waving that dissent all over the hearing room” arguing the lawyer wasn’t suspended long enough.
According to statistics provided on the board’s website, in 2013, the board granted eight petitions for reinstatement from a suspension and three petitions from those who were disbarred. The board denied one reinstatement from a suspended attorney and one from an attorney inactive for three or more years.
Gabriel Bevilacqua, who just finished a one-year term as chairman of the board, said he has been the sole dissenter arguing for harsher punishment for repeat offenders. But, he said, “I completely agree with the core value of uniformity and consistency in how these cases receive discipline. So the key here for me is we were consistent.” He said Baer recognized that each of the rulings was consistent with prior, similar cases.
Bevilacqua said it would be hard to lump the three cases together as “repeat-offender cases” given all have different fact patterns. If the court were to issue a new rule ordering tougher punishment for repeat offenders, Bevilacqua said the board would certainly comply. But he noted those types of things are difficult to quantify into a blanket rule.
Lackawanna County attorney Nicholas E. Fick was suspended for 18 months for neglect of three client matters, including lack of communication, diligence and competence. Fick was also alleged to have lied to a client about settlement discussions with opposing counsel, according to the board’s report. Fick claimed his conduct was mitigated because of his depression, according to the board, which found he didn’t meet his burden of proving the causal connection.
In 1999, Fick received an informal admonition and in 2001, he received a private reprimand for neglect and failure to communicate with a client. In 2005, he received a stayed suspension of one year with multiple conditions, including a practice monitor and mental-health monitor. That case also dealt with client neglect and failure to communicate, the board said.
The board said in its report to the Supreme Court that past discipline has not had the desired effect.
“Considering the board’s paramount duty to protect the public, it would be incredibly remiss and irresponsible for the board to permit [Fick] to continue practicing law,” the board said. “The next logical, incremental step in [Fick's] path of progressive discipline is a suspension of his professional license.”
The board said the 18-month suspension accounts for Fick’s extensive disciplinary history while recognizing that the specific underlying events in the latest case might not warrant a suspension.
Berks County attorney Richard Patrick Reynolds had previously been disciplined for neglecting an appeal in a criminal matter and for neglecting two matters involving his representation of criminal defendants, according to the board’s report.
In the most recent case, he was suspended for one year and one day for neglecting his client’s criminal appeal, resulting in the appeal being dismissed. The board noted Reynolds seemed remorseful and apologized to the client. Reynolds testified before the board that he had some medical issues and had been consuming alcohol “‘to excess’” until October 2012. The board said Reynolds didn’t offer testimony to show a connection between those issues and his misconduct.
“The board notes that, standing alone, this case would not merit suspension, but the cumulative nature of the prior discipline requires the board to assess this matter in a different light,” the board said, noting past, private discipline against Reynolds did not result in him changing his behavior.
Calls to Quinn, Reynolds and Fick were not returned. Neither was a call to Paul J. Killion, chief disciplinary counsel to the ODC.