Disciplinary Reporter Case Digest

Attorney ID 66420
Attorney Name Ostrowski , Andrew J.
DBP Docket No. 135 DB 2008
Supreme Court Docket No. 1556 DD No. 3
County Dauphin
Disciplinary Counsel Edwin W. Frese Jr.
Counsel for Respondent Samuel C. Stretton
Decision Date 2010-02-09
Effective Date 2010-03-09
Case Digest Respondent neglected his client’s federal civil rights action against his employer, the PA Department of General Services, by failing to timely disclose the identity of his client’s witnesses – resulting in an Order precluding their testimony, and by “disappearing” just three days prior to trial necessitating the client to seek a continuance and obtain new counsel. When Respondent disappeared (he signed himself into a psychiatric facility), he left a note in the client’s file admitting to “extreme neglect.” Respondent had been paid a $3,000 flat fee pursuant to a written fee agreement which did not state that it was non-refundable or earned upon receipt. Respondent, however, had treated that fee as non-refundable and earned upon receipt and did not deposit it into a trust account. Respondent had also been paid $500 to cover costs which he did deposit in his IOLTA account. The client asked for an accounting of all funds that he had paid to the Respondent but the Respondent, after being contacted by Disciplinary Counsel, only accounted for the $500 and not the $3,000. A few days before disappearing, Respondent was transferred to inactive status for failure to comply with his CLE requirements. Months later, the CLE Board notified the Disciplinary Board that Respondent was in compliance and Respondent was reinstated to active status even though he had never complied with Rule 217(e), Pa.R.D.E., by filing a Statement of Compliance. Respondent testified that he had a substance abuse problem for which he obtained inpatient treatment on three occasions, the last of which was immediately before his client’s case was scheduled for trial. However, Respondent was not in any 12-step program and presented no testimony that there was a causal connection with his misconduct. The Hearing Committee recommended a six-month stayed suspension, with 12 months of probation with various conditions. No exceptions were filed. However, a majority of the Disciplinary Board recommended a suspension of one year and one day considering Respondent’s prior record of two informal admonitions for similar misconduct, his admitted substance abuse problem but his failure to participate in any 12-step program or with Lawyers Concerned for Lawyers.
Rule Violation(s) RPCs 1.1, 1.3, 1.15(a), 1.15(b), 1.16(d), and Pa.R.D.E. 217(e)
Discipline Imposed Suspension for one year and one day
Points of Law Since the written fee agreement did not specify that the flat fee of $3,000 was non-refundable or earned upon receipt, it should have been deposited into a Trust Account and the Respondent should have accounted for it. The Board said: “The mere language that the $3,000 was a ‘flat fee’ is insufficient to transform the retainer automatically into Respondent’s personal property. Respondent should have deposited the funds into a trust account. It is crucial that a client understand how money is handled by the attorney. Respondent did not provide a written accounting to [his client] as to how the $3,000 had been applied. Respondent violated Rules 1.15(a) and (b).” Bd.Rpt. 12.
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