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Attorney E-Newsletter

January 2011

The Most Significant Disciplinary Cases of 2010

Each January we review the disciplinary cases decided by the Pennsylvania disciplinary system in the past year and select the five cases which seem most significant. The criteria we look at 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.

We chose the following as the five[1] most significant cases of 2010:

1. Richard S. Baumhammers, No. 598 Disciplinary Docket No. 2, No. 76 DB 2000.

The Baumhammers decision was not a particularly surprising or legally novel one, but definitely involved an unusual or extraordinary fact situation. Baumhammers was disbarred after his conviction on numerous criminal charges including criminal homicide, after a horrific shooting spree on April 28, 2000, in which he killed five people and critically wounded a sixth. The case is extraordinary because the conduct of Baumhammers may have been the most heinous misconduct ever committed by a Pennsylvania lawyer during the time the Disciplinary Board has been in existence.

2. Daniel Joseph Seal II, No. 913, Disciplinary Docket No. 3, 01 DB 2004.

The Seal case addresses several unusual and interesting issues. First, it revolved around a complicated fact situation raising an issue under Rule 4.2 of the Rules of Professional Conduct, relating to communications with a party represented by counsel. Seal, who was representing one defendant in a criminal case, had numerous communications with another defendant who was represented by counsel, trying to get his cooperation in a plan to offer the prosecution information about a third party with the hope of working a plea deal. Although he learned early that the other defendant was represented by counsel, he did not advise that counsel of his efforts or get his permission to talk to the client. To make matters worse, the information Seal's client wanted his co-defendant to tell the authorities was false. Seal was convicted of witness tampering. The Disciplinary Board found that in addition to his conviction, he had violated Rule 4.2 and also Rule 8.4(b), criminal act adversely reflecting on fitness.

The Disciplinary Board found an aggravating factor in Respondent’s lack of cooperation, as he continued to resist the disciplinary process even though his conviction conclusively established misconduct. The Disciplinary Board determined that a five year suspension was warranted.

Another intriguing issue the Disciplinary Board addressed was retroactivity. Seal sought retroactivity to a date on which he said he voluntarily ceased his practice. He was transferred to inactive status for continuing legal education violations a few months later. The Office of Disciplinary Counsel recommended no retroactivity. The Hearing Committee majority set retroactivity at the date of the disciplinary hearing, while one member dissented in favor of setting it at the first prehearing conference, about 20 months earlier. After considering all the possible dates, the Disciplinary Board recommended that the suspension be retroactive to the date of the disciplinary hearing. The Supreme Court accepted this recommendation.

3. Jeffrey J. Howell, No. 1635, Disciplinary Docket No. 3, No. 155 DB 2008.

This is a conflict of interest case, in which Howell took advantage of his longtime professional relationship with an elderly widow to get himself named as residuary beneficiary of her will, in a position to inherit 90% of her assets. He arranged for another attorney to interview the client and get her signature on the will, but the Disciplinary Board found that the other attorney’s involvement was minimal and that Howell was the mover and drafter in the revision of her will from which he benefitted. The Disciplinary Board found that this was a violation of Rules 1.1, competent representation, 1.8(a), business transaction with a client, 1.8(c), substantial gift from a client, and 8.4(a), violating the rules through actions of another. Howell was suspended for five years.

Another case in which an attorney benefitted from a client’s will was Aaron Pogach, No. 1654, Disciplinary Docket No. 3, No. 67 DB 2010. Pogach’s elderly and frail client initiated a request that he draft a will naming him as beneficiary and executor. Pogach had engaged another lawyer to draft the will when the client had made such a request years earlier, but this time he performed the service himself. On a joint petition for discipline on consent, Pogach admitted that he violated Rules 1.7(c) and 1.8(c). Upon approval of the joint petition, the Court directed that Pogach receive a public censure.

4. Robert L. Federline, No. 1261, Disciplinary Docket No. 3, No. 9 DB 2007, and Jill A. Devine, No. 1600, Disciplinary Docket No. 3, No. 183 DB 2007.

These two cases shed light on the circumstances under which mitigation of discipline due to mental or emotional conditions will be applied under the terms of Office of Disciplinary Counsel v. Braun, 553 A.2nd 894 (Pa., 1983). The Respondents sought to demonstrate that their misconduct resulted from depression or from drug and alcohol addiction, respectively. Neither offered expert medical testimony or reports, but both offered their own testimony and that of several nonmedical witnesses as to the effect of their conditions on their practice. In both cases, the Disciplinary Board found that the Respondents had not met their burden under Braun of proving that disability or addiction caused their misconduct. The Supreme Court accepted the Disciplinary Board’s recommendation in Devine, and increased the suspension in Federline from the Board’s recommendation of two years to three years.

Together with the recent amendment of Rule 301(e), Pa. R.D.E., discussed in the next item, these two cases point to an increasingly strict requirement that a respondent-attorney may not simply allege that he or she suffers from a disabling condition, but must offer medical expert testimony to prove the existence of the condition and its effect on the respondent-attorney’s conduct or ability to defend.

5. Lougenia S. Graves, No. 1609, Disciplinary Docket No. 3, No. 71 DB 2009; Janice S. Haagensen, No. 1610, Disciplinary Docket No. 3, No. 170 DB 2006; Anne Michelle Campbell, No. 1397, Disciplinary Docket No. 3, No. 81 DB 2009.

These cases demonstrate the consequences that ensue when a lawyer ignores the disciplinary process and fails to appear for private discipline.

Graves had a number of chances to save her career and let them all go by. Her disciplinary history began with an informal admonition imposed in 1992. In a subsequent complaint, Graves was ordered to appear for a private reprimand subject to conditions. When she failed to fulfill the conditions, under the terms of Section 89.205(e) of the Rules of the Disciplinary Board, the discipline escalated to public censure. She failed to appear for public censure, and the Supreme Court imposed a suspension for a year and a day. Shortly before she was suspended, Graves was named an arbitrator in the Compulsory Arbitration Program of the Court of Common Pleas of Philadelphia. This status required that she be a licensed attorney on active status. Graves failed to notify the Court of Common Pleas of her suspension, or to comply with any of the other requirements of the rule. Over the next 12 years, Grave accepted more than 50 arbitration appointments, for which she was compensated. She never revealed to the court, fellow arbitrators, counsel, or parties that she was suspended. For this conduct, she was disbarred.

Campbell was suspended for a year and a day after not responding to disciplinary counsel’s inquiries, and not appearing for private discipline or her disciplinary hearing.

Haagensen based her refusal to accept a private reprimand on an argument that the Disciplinary Board, as a state tribunal, had no jurisdiction over her conduct in a federal case and acted unconstitutionally in imposing discipline on her. She filed an action for injunctive relief in the United States District Court seeking to bar the Pennsylvania system from proceeding. She lost.

On a related note, each year John Steele at the Legal Ethics Forum posts a list of the top ten ethics stories of the year. His list for 2010 is here. His top story this year is the series of decisions by the United States Supreme Court on legal ethics issues, several of which we reported in our July issue.

Supreme Court Adopts Changes to Disability Proceeding Rules

In August we reported on a proposed change to Rule 301(e) of the Pennsylvania Rules of Disciplinary Enforcement, which would impose additional duties on lawyers asserting mental disability defenses in disciplinary proceedings.

After a comment period, the Supreme Court adopted the rule change by an order posted January 3, 2011. The text of the new rule is posted here, and published in the Pennsylvania Bulletin at 41 Pa.B. 331 (January 15, 2011).

The new rule requires that a lawyer who asserts inability to defend him or herself due to a physical, mental or emotional disability must file a certificate which:

  1. identifies the precise nature of the disability and the specific or approximate date of the onset or initial diagnosis of the disabling condition;
  2. explains how the disabling condition makes it impossible for the respondent to prepare an adequate defense; and,
  3. appends an opinion of at least one medical expert that the respondent is unable to prepare an adequate defense including the basis for the medical expert's opinion.

Upon filing of the certificate, the Supreme Court shall enter an order transferring the attorney to inactive status, pending a determination of his or her capacity to defend, unless the Court finds that the certificate does not comply with the requirements of the rule. The Court may take or direct action to make a determination of the attorney’s capacity to proceed, including directing an examination of the attorney by an independent ’s expense.

It should be noted that the rule deals only with attorneys who assert they are unable to defend disciplinary proceedings, not with the assertion of disability as a mitigating factor in discipline.

The rule takes effect February 2, 2011.

Nigerian Scammers Strike Pennsylvania Lawyers; Indictments in Middle District

According to an indictment filed in the United States District Court for the Middle District of Pennsylvania on November 3, a highly sophisticated variation of the “Nigerian scam”[2] targeted specifically to lawyers has reached several Pennsylvania law firms, and taken some of them in.

Scranton lawyer Gene Goldenziel was contacted over the telephone by a woman who told him she was to receive a check from her employer’s disability policy, but that the insurance company would only issue the check to a lawyer. Goldenziel checked out the story and found that it seemed to be legitimate, and eventually a check for $400,000 arrived in his office. He became suspicious when he was told, at a telephone number purporting to be that of the insurance company, that he should deposit the check in a trust account and send a disbursement check to his client in South Korea. Goldenziel[3] held off while checking the story out further and his suspicions were confirmed when a parcel inspector told him the check was fraudulent.

The indictment names Emmanuel Ekhator, who is in custody in Nigeria awaiting extradition, as the ringleader of the scheme. The indictment states that the conspirators bilked more than 80 law firms in the United States and Canada out of more than $32 million and attempted to cheat an additional 300 law firms out of more than $100 million.

Let Me Take You Higher

We have previously followed the adventures of California dentist-realtor-attorney Orly Taitz, whose quest for a judicial declaration that President Obama is not a U.S. citizen led to the imposition of a sanction of $20,000 by U.S. District Court Judge Clay Land in 2009.

Ms. Taitz’s efforts to overturn the fine appeared to come to an end on January 10, 2011, when the Supreme Court, acting per curiam, denied her application for certiorari.

But maybe not. Taitz, who is nothing if not persistent, told the Columbus, Georgia, Ledger-Enquirer that she intends to fight on. She will move for reconsideration, and “If it is denied, I will go to an international court. I will be filing a proper complaint with the Committee of the Judiciary with the U.S. House.”

Take that, Justice Jackson.

High Aspirations on a Tight Schedule

Much has been written of late about hard times for new lawyers, but that hasn’t stopped the profession from attracting top, umm, talent. People magazine[4] reports that newly crowned Miss America Teresa Scanlan, 17, aspires to attend law school and eventually sit on the Supreme Court, on her way to becoming President. She realizes she has to wait until she is 35 for the latter goal, but says, "I've got another lifetime to wait." Yes, when your lifetime is 17 years long, that would be another one.

If she succeeds in her goal of reaching both the Supreme Court and the White House, she would be only the second American to do so. The first, of course, was William Howard Taft. But he never won the Miss America pageant.[5]

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] Eight, really.

[2] Literally, it appears.

[3] Who was not taken in.

[4] The latest in our long line of august legal sources.

[5] Just couldn’t hack the swimsuit competition.