| Case Digest |
Respondent engaged in the knowing and intentional misappropriation of fiduciary funds by allowing the balances in his escrow account to fall below the amount of funds entrusted to him on behalf of clients, an insurance company, an attorney discharged by one of Respondent’s current clients, and other third parties. On 94 occasions between January 1995 and September 1997, Respondent’s escrow account was “out of trust” in amounts ranging from $1,298.76 to $89,029.69. On 66 occasions from May 2000 to December 2000, the escrow account was “out of trust” in amounts ranging from $506.87 to $19,888.90. Some of the shortfalls occurred when Respondent knowingly transferred funds from his escrow account to his operating account to cover operating account overdrafts. Respondent also commingled funds in violation of RPC 1.15(a) by depositing personal funds into his escrow account.
Respondent presented the testimony of a licensed psychologist who indicated that Respondent was experiencing stress caused by litigation in the mid-1990’s over the custody of Respondent’s minor child, but the stress had abated by the end of 2001. Because the psychologist did not diagnose Respondent with a specific disorder and did not find a causal connection between a specific disorder and the misconduct, the Disciplinary Board determined that Respondent was not entitled to mitigation of discipline under Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989).
By way of mitigation, the Respondent presented five character witnesses who testified to Respondent’s excellent reputation in the community for truthfulness and honesty. The Respondent also demonstrated remorse and had no record of discipline. A Majority of the Disciplinary Board concluded that Respondent was a competent lawyer “who was not paying attention to the details in his office.” Taking into consideration that Respondent recognized his wrongdoing and was fully aware of the concrete steps he must take to avoid misconduct in the future, the Board Majority recommended that Respondent be suspended for ten months and placed on probation for a period of three years with a certified public accountant monitor. Three Board Members dissented and would have recommended a one year and one day suspension. Two Board Members dissented and would have recommended a two-year suspension. One Board Member dissented and would have recommended a three-year suspension.
The Office of Disciplinary Counsel filed a petition for review. By Order dated February 18, 2004, the Supreme Court imposed a two-year suspension. |
