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Disciplinary Reporter Case Digest

Attorney ID 28535
Attorney Name Manchester, Robert Bruce
DBP Docket No. 180 DB 2009
Supreme Court Docket No. 1689 D.D. No. 3
County Centre
Disciplinary Counsel John Francis Dougherty
Counsel for Respondent Robert H. Davis, Jr.
Decision Date 2011-03-17
Effective Date 2011-04-18
Case Digest In Count One, Respondent was retained to represent a Georgia resident on criminal charges. Respondent is not admitted in Georgia, but intended to associate with local counsel. A $5,000 retainer was paid by the clientís uncle. The Respondent intended for the retainer to be nonrefundable but no fee agreement or other writing exists. The client and his uncle understood that if the client decided to retain counsel in Georgia that the retainer would be accounted for and any unearned portion would be returned to the client. In the week that the Respondent was involved in the case, he was in a trial in the District of Columbia. His staff made some calls on the matter but no paperwork of any nature was generated. Within a week of the retainer being paid, the client retained Georgia counsel and requested the unearned portion of the retainer. The Respondent ignored the request, failed to respond to subsequent inquires from the uncle until January 2006 when he agreed to provide an accounting and return the unearned portion of the retainer. He did not, and did not respond to subsequent inquires from the uncle, or from an attorney who inquired for the uncle. Disciplinary Counsel spoke to the Respondent and he promised to provide the uncle with an accounting and the return of unearned funds; he did neither. Respondent did not respond to a subsequent call from Disciplinary Counsel or to a DB-7 Request for Statement of Respondentís Position. Two days before the hearing on this matter the Respondent contacted the uncle and they reached an agreement for the return of $3,000, which was accomplished. The Board found violations of: RPC 1.5(b); 1.15(a) & (b); and 1.16(d). Count Two involved a brief filed in the Superior Court on behalf of a criminal defendant. The Court found the brief seriously deficient as to form and substance and dismissed the appeal in November 2006. The Respondent did not tell the client of the dismissal until March 2007, and then caused him to believe the Respondent would initiate a PCRA proceeding. No action was initiated until shortly before the expiration of the year time limit for filing, when the client filed a pro se petition after determining that the Respondent had filed nothing. The Respondent was found to have been ineffective and the prior clientís appellate rights were restored and an appeal was filed. The Board found that the Respondent violated Rules: 1.1; 1.4(a)(2) & (3); 1.4(b); and 8.4(d). The Board noted that there was precedent reflecting public discipline being imposed on counsel who filed seriously defective appellate briefs in criminal matters, and that it appeared the Court is taking a closer look at such matters. An aggravating factor was an Informal Admonition in 2007. A mitigating factor was the Respondentís cooperation reflected by an extensive stipulation. A letter from Respondentís doctor reflecting some medical problems was admitted but found to not meet the requirements of Braun to be considered as a possible mitigating factor.
Rule Violation(s) 1.5(b); 1.15(a) 1.15(b); 1.16(d).1.1; 1.4(a)(2) 1.4(a)(3); 1.4(b); and 8.4(d)
Discipline Imposed Suspension for 3 months.
Points of Law A contention that a fee is nonrefundable cannot be supported by only verbal contentions that are disputed by the client. A timely accounting and the return of unearned fees is required. Filing a seriously defective brief to the Superior Court in a criminal matter resulting in a dismissal that is not timely communicated to the client, with appellate rights restored after a PCRA proceeding, is conduct prejudicial to the administration of justice.
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