Opinion
No. 60 DB 2015
07-26-2016
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. CESAR ALVAREZ-MORENO Respondent
No. 1953 Disciplinary Docket No. 3 ORDER
PER CURIAM
AND NOW, this 21 day of September, 2016, upon consideration of the Report and Recommendations of the Disciplinary Board, Cesar Alvarez-Moreno is suspended from the Bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Pa.R.D.E. 217. Respondent shall pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g). A True Copy Patricia Nicola
As Of 9/21/2016 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania Attorney Registration No. 41128 (Out of State)
REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania ("Board") herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.
I. HISTORY OF PROCEEDINGS
By Petition for Discipline filed on April 10, 2015, Office of Disciplinary Counsel charged Cesar Alvarez-Moreno, Respondent, with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of his criminal conviction in the State of Maryland of assault in the second degree. Respondent filed an Answer to Petition for Discipline on June 1, 2015.
A disciplinary hearing was held on August 26, 2015, before a District I Hearing Committee comprised of Chair Michael L. Turner, Esquire, and Members Sarah A. Kelly, Esquire and Sayde J. Ladov, Esquire. Respondent appeared pro se. Petitioner presented its case by moving into evidence Joint Stipulations reached between the parties and exhibits. Respondent testified on his own behalf.
Following the submission of a brief by Petitioner, the Hearing Committee filed a Report on December 23, 2015, concluding that Respondent violated the Rules as charged in the Petition for Discipline and recommending that he be disbarred.
No Briefs on Exceptions were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting on April 21, 2016.
II. FINDINGS OF FACT
The Board makes the following findings:
1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.
2. Respondent is Cesar Alvarez-Moreno. He was born in 1951 and was admitted to practice law in the Commonwealth of Pennsylvania in 1984. His registered office address is 5066 G. Street, SE, Washington, D.C. 20019. Respondent is currently on inactive status and is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court. N.T. 24; S-2.
3. Respondent has no history of professional discipline.
4. On November 30, 2012, a jury in the Circuit Court for Anne Arundel County, Maryland, found Respondent guilty of assault in the second degree, a misdemeanor. S-3.
5. The incident took place on December 27, 2011, at which time Respondent assaulted an individual who was exiting his own vehicle. Respondent continued to beat the other motorist while witnesses honked their horns and yelled for Respondent to get off the other motorist. The other motorist sustained serious physical injury, including a gash to the head, blackened eyes, and cracked ribs. S-6; P-4.
6. Respondent was sentenced to a term of incarceration of four years with three years and six months of the sentence suspended, credit for time served, restitution and a term of probation. Respondent made restitution, served his time and is compliant with his probation. S-7; N.T. 22-23.
7. Respondent has had several previous interactions with the criminal justice system:
a. In 1973, Respondent was arrested for having interfered with a police officer's arrest of a neighbor's son, resulting in a conviction for obstruction of justice;
b. In 1973, Respondent was arrested for firing a rifle while working at his father's store. One shot was fired in the air, a second shot was directed at an individual who had entered the store. This episode led to Respondent's conviction of atrocious assault and battery; and
c. In 1974, Respondent had a physical fight with another person wherein he bit off a piece of the other person's ear. This episode led to a conviction of aggravated assault and sentence of imprisonment of four to five years.
8. Following his release from prison, Respondent graduated from Rutgers University and Rutgers Law School. N.T. 41-42.
9. Respondent held a variety of legal jobs after his admission to the bars of Pennsylvania and New Jersey. He was employed by the Public Defender's Office in New Jersey from 1987 to 1993 and from 1998 to 2003. N.T. 26, 43.
10. Respondent was terminated from his employment at the Public Defender's Office because he did not satisfy a court-imposed fine of $250.00 after he was found in contempt. N.T. 44.
11. Sometime in 2007, Respondent began receiving social security and veteran's disability benefits. (N.T. 51) Respondent also receives pension benefits from the State of New Jersey. He ceased practicing law after he became eligible for these benefits. N.T. 58.
12. Respondent has no interest in resuming the practice of law. N.T. 24-25.
13. Respondent cooperated with Petitioner by entering into stipulations of fact and law. S-1-15
14. Notwithstanding the fact that Respondent admits that his conviction for assault constitutes violations of Rule 203(b)(1), Pa.R.D.E. and RPC 8.4(b), Respondent continues to assert his innocence and insists the other motorist instigated the fight. N.T. 11, 12.
15. Respondent believes he was "railroaded" and the victim of prejudice. N.T. 13, 18-20, 21.
16. Respondent accused the judge and prosecutor of engaging in misconduct. N.T. 17-18.
17. Respondent admits that it was not appropriate for him to be involved in a fight with another individual and that he was sorry that the incident had occurred. N.T. 52, 72.
III. CONCLUSIONS OF LAW
By his conduct as set forth above, Respondent violated the following Rule of Professional Conduct and Rule of Disciplinary Enforcement:
1. RPC 8.4(b) - It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.
2. Pa.R.D.E. 203(b)(1) - Conviction of a crime shall be grounds for discipline.
IV. DISCUSSION
The sole issue for the Board's consideration in the instant matter is the appropriate level of discipline for Respondent, whose criminal conviction of assault conclusively establishes the violation of Rule 203(b)(1), Pa.R.D.E. After considering the nature and gravity of the misconduct as well as the presence of aggravating or mitigating factors, Office of Disciplinary Counsel v. Gwendolyn Harmon, 72 Pa. D & C. 4 115 (2004), we recommend that Respondent be suspended from the practice of law for a period of two years.
The underlying facts supporting Respondent's conviction are straightforward. Respondent was involved in a road rage incident in Maryland where he beat another motorist, causing that motorist to suffer serious personal injury, including a gash to the forehead, blackened eyes and cracked ribs. Respondent's misconduct did not involve the practice of law. Respondent was sentenced to four years of incarceration, with time served for three years and six months of that term, restitution and probation. With this sentence, the criminal justice system fulfilled its purpose of punishing Respondent for his misconduct. Pennsylvania's disciplinary system serves a different purpose. Disciplinary sanctions are intended not to punish but to protect the public from unfit attorneys and preserve public confidence in the legal system. Office of Disciplinary Counsel v. Stern, 526 A.2d 1180 (Pa. 1987).
This matter is ripe for the determination of discipline. Petitioner seeks a suspension of nine months. Respondent did not offer a recommendation. The Hearing Committee has recommended disbarment. These recommendations are far apart on the spectrum of sanctions and so we examine case precedent for guidance.
There is no per se discipline in Pennsylvania; however, prior cases involving similar misconduct are instructive and are suggestive of a suspension for Respondent. Office of Disciplinary Counsel v. Lucarini, 472 A.2d 186 (Pa. 1983). Two prior matters have resulted in suspensions for eighteen months. In Office of Disciplinary Counsel v. Jeffrey Thomas Spangler, 679 & 763 D.D. No. 3 (Pa. 2004), Spangler was twice convicted of simple assault for two separate incidents that occurred within seventeen months of one another and also convicted of disorderly conduct for a third incident that occurred two months after the last simple assault episode. In Office of Disciplinary Counsel v. Mark Eugene Rowe, 1536 D.D. No. 3 (Pa. 2011), Rowe was twice convicted of simple assault in two separate incidents that involved Rowe assaulting his girlfriend.
We are unable to find any prior cases that resulted in disbarment, as recommended by the Committee, and are persuaded that such a sanction is not appropriate in this matter. Disbarment is reserved for the most egregious matters of attorney misconduct. Office of Disciplinary Counsel v. Keller, 506 A.2d 872, 879 (Pa. 1986). It appears that when making its recommendation for discipline, the Committee relied, in part, on Respondent's prior criminal convictions for obstruction of justice, atrocious assault and battery, and aggravated assault. On closer inspection, we decline to give weight to these convictions, as they occurred more than 40 years ago and prior to Respondent's graduation from college and law school and his admission to the bar.
In recommending a two year suspension for Respondent we recognize that although Respondent acknowledged that his conviction violated the Rules of Disciplinary Enforcement and Rules of Professional Conduct, he vehemently continues to assert his innocence, believing he was "railroaded" and was the victim of the arresting officer's ethnic bias. He further accused the judge and prosecutor in his criminal matter of engaging in misconduct. There was no evidence brought forth that demonstrated Respondent's genuine and sincere remorse, trustworthiness, or understanding that he committed criminal acts. The Hearing Committee observed Respondent's demeanor at the hearing and noted its concern that Respondent's temper issues may put the public and other members of the bench and bar at risk.
Based on the above-mentioned factors, we are persuaded that the protection of the public and the integrity of the legal profession will be best served by a suspension of two years.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the Respondent, Cesar Alvarez-Moreno, be Suspended from the practice of law for a period of two years.
It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the Respondent.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:/s/_________
Dr. Stefanie B. Porges, Board Member Date:July 26, 2016