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Disciplinary Reporter Case Digest

Attorney ID 1015
Attorney Name Smith, Thomas William
DBP Docket No. 21 DB 2000
Supreme Court Docket No. 866 DD No. 3
County Philadelphia
Disciplinary Counsel Anthony P. Sodroski
Counsel for Respondent John Rogers Carroll
Decision Date 2003-12-09
Effective Date 2004-01-08
Case Digest During a three-year period from 1995 to 1998, Respondent, who was employed by a law firm, neglected eleven medical malpractice matters by failing to pursue investigation and discovery and by failing to respond to, inter alia, numerous summary judgment motions. Respondentís neglect resulted in the complete dismissal of the clientsí claims in ten matters and partial dismissal of the clientís claims in one matter. In four of the eleven matters, Respondent engaged in intentional misrepresentation of the status of the matter to the client or a third person in order to conceal his neglect from the client. In seven of the eleven matters, Respondent engaged in intentional and active misrepresentation to, or deception toward, his employer in order to conceal his neglect from his employer. These misrepresentations about the status of the cases occurred on seven separate dates during a three-month time frame. After discovering the neglect, the law firm that employed Respondent terminated his employment and filed a petition for extraordinary relief with the Court of Common Pleas seeking to open the judgments. The civil litigation generated negative publicity in the Philadelphia area. Respondentís actions were publicized in both legal and non-legal circles and became well known in both forums. In a separate matter, Respondent, while employed at a different law firm in 1991, had agreed to represent a client in a medical malpractice action but neglected to file suit, thereby allowing the statute of limitations to expire. From 1994 to early 1998, Respondent misrepresented the status of the matter to the client in order to deceive her into believing that suit had been filed and that the matter was active and would eventually be settled prior to trial. In 1998, the client filed an action in legal malpractice naming Respondent and his former employer as defendants; Respondent, through counsel, filed an answer denying liability and affirmatively attempted to shift ďsole liabilityĒ to his former employer even though Respondent knew that he had accepted the clientís case in derogation of law firm policy. Respondent admitted his misconduct, and therefore the Board focused on the appropriate discipline to be imposed. The Board noted that discipline involving the neglect of multiple matters and misrepresentations to hide the neglect ranges from public censure to a lengthy suspension. The Board mitigated the discipline based upon the testimony of the Respondentís treating psychiatrist, which established that Respondent was suffering from alcoholism during the relevant time frame and that this impairment was a direct cause of his misconduct. The psychiatrist opined that the effects of the disease of alcoholism became more pronounced in the 1990ís, as Respondentís stress levels increased due to problems in his personal life. Respondent also experienced pressing financial difficulties in 1997, as the IRS was garnishing most of his salary, resulting in Respondentís inability to pay his mortgage on the family house and its foreclosure. The Board found that as of the February 6, 2002 hearing, Respondent had made ďgreat progressĒ in his recovery program. Other mitigating factors included Respondentís recognition of responsibility and his remorse, his cooperation in the disciplinary proceedings, and positive character testimony that Respondent has an excellent reputation as a trial lawyer. The Board found one aggravating factorónamely, the Respondentís prior record of discipline consisting of a public censure imposed in 1987 as a result of his conviction for failing to timely file tax returns, but the significance of this factor was reduced by the fact that the conviction occurred 16 years earlier and the censure was imposed 14 years earlier. A Majority of the Board recommended that Respondent be suspended for a period of four years, retroactive to December 13, 1998, the effective date that Respondent had been transferred to inactive status. Two Board Members dissented and recommended a one year and one day suspension not retroactive.
Rule Violation(s) RPC 1.1, RPC 1.3, RPC 4.1(a), RPC 8.4(c), and RPC 8.4(d).
Discipline Imposed Suspension for a period of one year and one day.
Points of Law Neglect of multiple legal matters coupled with multiple misrepresentations to hide the neglect warrants some form of public discipline, and the trend is to impose suspension.
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