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Attorney E-Newsletter

January 2010

Most Significant Disciplinary Cases of 2009

In this issue we present our second annual survey of the most interesting disciplinary cases decided during the year. Factors we look for in selecting these cases, in no particular order, include:

  • Unusual or extraordinary fact situations;
  • Decisions which address legal issues that often come up in disciplinary cases;
  • Decisions which discuss the meaning of one of the Rules of Professional Conduct or Rules of Disciplinary Enforcement;
  • Decisions which present reviews of prior cases on a subject;
  • Decisions regarding situations which may arise regularly in the practice of law.

Decisions of the judge[1] are final and unappealable. For 2009, we have selected the following cases:

1. Debbie Ann Carlitz, 131 DB 2007

Carlitz was suspended by a Joint Petition for Discipline by Consent approved March 26, 2008. On March 3, 2009, she filed with the Supreme Court a Petition for Review, seeking to have her suspension vacated. It turned out that Carlitz’s office manager and paralegal, Bonnie Sweeten[2], had handled the entire matter, taking the Petition for Discipline against Carlitz to an attorney; handling all contacts with the attorney while a suspension was negotiated with Disciplinary Counsel; and, signing and notarizing the agreement to suspension. Another attorney learned of Carlitz’s suspension on the Disciplinary Board web site and asked her about it; she expressed surprise, saying this was the first she had heard of it.

By an order dated December 1, 2009, the Supreme Court vacated the order imposing Carlitz’s suspension. However, the action hardly came as a relief, as Carlitz was disbarred by consent the same day.

2. William Z. Warren, 151 DB 2007

Warren was suspended for five years based on allegations he made in pleadings that accused a judge of improper and illegal activity, in a case in which he was the defendant. He did not participate in the disciplinary case and offered no evidence for his allegations.

The decision is of interest as it contains an examination of other cases of judicial criticism, and also a detailed discussion of the shifting burden of proof articulated by the Supreme Court in Office of Disciplinary Counsel v. Price,557 Pa. 166, 732 A.2d 599 (1999).

Finally, the Board also rejected an effort by the Hearing Committee to apply mitigation on mental disability grounds under Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), based on an expression in the record of the opinion of a lawyer that Warren “needed psychiatric help.” The Disciplinary Board concluded that the formal basis for Braun mitigation could not be found where the respondent-attorney does not appear and offer proof of mental disability.

Critical comments about a judge resulted only in public censure in the case of Robert A. Wilson, 150 DB 2007, where the comments were much more restrained and the attorney appeared at the disciplinary hearing and acknowledged they should have been phrased differently.

3. Arthur L. Bloom, 177 DB 2006

This case presents a thorough discussion of the threshold for mitigation based on mental illness or disability under Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989). Bloom’s conduct was quite serious, involving misappropriation from an estate.

Bloom presented the testimony of a psychiatrist whom he consulted after receiving notice of the allegations of misconduct. The psychiatrist diagnosed Bloom as suffering from depression over a long period of time, and expressed the belief that his illness had a causal effect on his misconduct, and specifically that it had led him to make decisions with financial impact under emotional pressure. A psychiatric expert called by Disciplinary Counsel disagreed with these conclusions, and expressed the view that depression generally does not lead individuals to commit acts of theft or other crimes.

The Hearing Committee and the Disciplinary Board weighed this evidence, and concluded it did not show a causal connection to Bloom’s misconduct. He was disbarred. The case is a vivid example of how major cases often turn on the battle of psychiatric experts.

4. Mary Ellen Tomasco, 111 DB 2004-R

Most reinstatement cases proceed along predictable lines, but this one revolved around a unique set of facts. Tomasco was seeking reinstatement after being suspended for a conflict of interest with regard to an estate. After she was suspended, she failed to notify her clients of this fact as required by Rule 217, Pa. R.D.E. Instead, she notified them prior to her suspension that she was “retiring” and referred them to another attorney. She was working as a paralegal for this attorney. She then continued to serve as a personal representative of some estates, including the one for which she had been suspended. The Disciplinary Board concluded that this conduct showed a lack of understanding of the wrongfulness of her conduct and a lack of judgment such that she had not met her burden of showing that she is fit to practice law. Accordingly, she was denied reinstatement.

5. Frank A. Mazzeo, 156 DB 2007

This is another case in which the Hearing Committee, Disciplinary Board, and Supreme Court grappled with the impact of mitigation in setting a period of suspension. Mazzeo committed misconduct relating to his fees in a Social Security matter, and then lied to the client, the Social Security Administration, and Disciplinary Counsel about his role. Factors cited as mitigating were the absence of a prior record, his role in his community, remorse, restitution, and loss of half his income due to the Social Security Administration disqualifying him from handling Social Security cases. Mazzeo also offered a letter from a psychiatrist stating he might have had a psychiatric condition, but all agreed this did not meet the Braun standard.

The Hearing Committee recommended a five-year suspension, but the Disciplinary Board applied mitigation to reduce its recommendation to actual suspension for a year and a day, with the balance of five years to be served on probation. Dissenting Disciplinary Board members would have made the recommendation for two years actual suspension. The Supreme Court, however, rejected both recommendations and adopted the Hearing Committee’s recommendation of a five-year suspension, suggesting that the Supreme Court was less moved by the mitigation offered than the Disciplinary Board.

The Second Tier: Other cases of interest

Edward Raymond Dougherty, 56 DB 2009

Although it is a consent case, the Dougherty matter is interesting because it explores the lawyer’s duty to take remedial measures to correct a client’s fraudulent actions. After being put on notice that his client had committed falsehoods, Dougherty failed to respond to numerous communications, repeatedly claimed he would have to have his client’s consent to remedial steps, and continued to represent the client for four months before seeking to withdraw. He received a public censure.

Michael John Pisanchyn, 118 DB 2007
John C. McFadden, 121 DB 2008 and 41 DB 2009

These two attorneys received discipline for criminal acts committed outside the practice of law, both alcohol-related.[3]

Pisanchyn was convicted of simple assault, harassment, disorderly conduct, and endangering another person after what was described as a “bar fight.” He received a public censure.

McFadden, however, received a two-year suspension on consent after multiple convictions including criminal mischief and terroristic threats. The second was committed while he was still on probation for the first.

Secretary Turns in/on Litigator

Our top case demonstrates that woe can betide the lawyer who relies too much on a trusted employee. But a New Jersey case illustrates the opposite – that a lawyer who ill treats his staff can come to rue that as well.

On January 12, 2010, the Disciplinary Review Board of the Supreme Court of New Jersey voted to recommend the disbarment of litigator David Gross for keeping secret from his law firm a gift of $50,000 from a client. Gross instructed Claudette McCarthy, his longtime secretary, to type a letter instructing the client to send him the check in an envelope marked “personal and confidential,” so that it would not be opened in the mail room of his firm and deposited to the firm’s account. Moreover, he directed her to delete the letter from her computer and not tell anyone in the firm about it.

And so she didn’t tell anyone for four years, until Gross’s relationship with McCarthy went bad. After several incidents, culminating in Gross calling McCarthy by an obscene name and scrawling “no” on her vacation request and throwing it into a wastebasket, McCarthy decided to get even. She told other members of the firm about the check. The firm sued Gross and brought a disciplinary complaint, which led to the disbarment recommendation.

Demonstrative Evidence Gone Wild

Surely every trial lawyer wants to make a bang in the courtroom, but a Kansas lawyer may have gone too far to get his point across. Arguing to a jury on the meaning of an “imminent threat,” defense attorney Sam Kerfield took out a grenade,[4] pulled out the pin, laid it on the prosecution table in front of prosecutor Amanda Voth, and asked the jurors, “Are you afraid now?”

Apparently not, as the jury took 15 minutes to convict Kerfield’s client,[5] Anastasia Daily. Assistant District Attorney Voth, plucky in the pursuit of her sworn duties, reportedly “laughed and declined comment.” The Sheriff’s office, however, was not amused, and mulled filing criminal charges against Kerfield, but decided not to do so upon recommendation of District Attorney Barry Disney.

Errata? Who, Us?

In our December edition, our article regarding the United States Supreme Court’s decision in the case of Mohawk Industries v. Carpenter stated that the Court “ruled that a decision of a District Court to compel production of information to which a party had asserted attorney-client privilege was subject to an interlocutory appeal.” As Jeffrey S. Saltz of Philadelphia was the first to note, “If I'm not mistaken, the Supreme Court ruled in Mohawk v. Carpenter that the District Court decision was not subject to an interlocutory appeal.” No, Mr. Saltz is not mistaken, and that one little word was somehow missing from our account. Totally by inadvertence, of course. Totally. We knew that. Charles H. Saul of Pittsburgh gets the runner up award.

We also noted that New Jersey Rule 4.4(b) requires a lawyer who receives misdirected documents to “return such documents to whomever sent them.” Elliot B. Platt of Philadelphia reminds us that the last three words are a clause that is the object of “to,” and thus the correct term should have been “whoever” which was the subject of “sent.” He is correct. We plead mitigation arising from a paralyzing fear that the ghost of Mrs. Letzkus[6] would return and whack us with a ruler upon hearing “to whoever,” without waiting for the rest.

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] Actually the Editor.

[2] Which did not Sweeten the outcome.

[3] In which “admission to the bar” had a whole different set of consequences.

[4] He knew it was a dud, but no one else did.

[5] Apparently the grenade wasn’t the only dud Kerfield pulled out that day.

[6] Our oft-invoked fourth grade teacher and grammatical nemesis.