Opinion
No. 209 DB 2011
06-04-2013
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. [ANONYMOUS] Respondent
No. [ ] Disciplinary Docket No. 3
Attorney Registration No. [ ]
([ ] County)
OPINION
I. HISTORY OF PROCEEDINGS
By Petition for Discipline filed on August 6, 2012, Office of Disciplinary counsel charged [Respondent] with violations of Rule of Professional Conduct 8.4(b) and Rule of Disciplinary Enforcement 203(b)(1) arising out of his criminal conviction for driving under the influence of alcohol or controlled substance: high rate of alcohol, first offense, careless driving and failure to stop at a red signal. Respondent filed an Answer to Petition on August 29, 2012.
A disciplinary hearing was held on November 29, 2012, before a District II Hearing Committee comprised of Chair [ ], Esquire, and Members [ ], Esquire and [ ], Esquire. Respondent appeared pro se.
Following the submission of briefs by the parties, the Committee filed a Report on March 18, 2013 and recommended that Respondent be subjected to an Informal Admonition.
No Briefs on Exception were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting on May 23, 2013.
II. FINDINGS OF FACT
The Board makes the following findings of fact:
1. Petitioner, whose principal office is situated at Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106, is invested pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any 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.
2. Respondent is [ ]. He was born in 1977 and was admitted to practice law in the Commonwealth in 2003. Respondent is currently on active status and his current address of record is [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
3. Respondent has no history of discipline in Pennsylvania.
4. Respondent is a Type-1, Juvenile Onset diabetic, insulin dependent. He utilizes an insulin pump to control his diabetes which administers "short-acting" insulin. (N.T. 14)
5. The "short-acting" insulin, when administered, begins to act within 15 minutes and can continue to lower blood glucose levels for up to four hours. (N.T. 14)
6. The normal blood glucose level of an adult is between 90-120 mg/dL. (N.T. 36)
7. On April 1, 2011, at approximately 6:54 p.m., the [ ] Police were dispatched to a two-vehicle accident at the intersection of [ ] Avenue and [ ] Road. (JE-4)
8. Police arrived at the scene to find several people holding Respondent to the ground, who advised police that Respondent was attempting to flee the scene. (JE-4)
9. According to police, Respondent exhibited signs of intoxication. Police also noticed that Respondent was carrying an insulin pump and requested an ambulance for Respondent for a possible diabetic emergency. (JE-4)
10. Police learned that Respondent had struck the rear of the other vehicle in the accident. Respondent then reversed his car and went around the struck vehicle and continued westbound on [ ] Avenue, went through a red light and struck a traffic signal post head on at the northwest corner of [ ] Avenue and [ ] Road. (JE-4)
11. Respondent exited his vehicle and was running south across four lanes of [ ] Avenue where he was stopped by witnesses of the accident. (JE-4)
12. Respondent was transported to [ ] Hospital and treated for, inter alia low blood sugar.
13. On the day of the accident, Respondent attended a [ ] baseball game where he consumed alcohol. Prior to leaving the baseball game, Respondent had checked his blood sugar and found it to be at 112 but during the drive it dropped to 33 or 39. (N.T. 15; JE-4)
14. The effects of moderate hypoglycemia begin when blood sugar falls below 55mg/dL and include, but are not limited to:
a. confusion, difficulty in thinking, inability to concentrate;
b. blurred vision, dizziness or headache;
c. poor coordination;
d. difficulty walking or talking. (JE-8)
15. The effects of severe hypoglycemia begin when blood sugar falls below 40 mg/dL and could include but are not limited to seizures or convulsions. (JE-8)
16. Respondent was subsequently arrested and charged with driving under the influence of alcohol or a controlled substance: general impairment/ incapable of driving safely, failure to stop and give information or render aid, accidents involving damages to unattended vehicle or property and other related charges in [ ] County.
17. There is no evidence that anyone was injured in the accident. (JE-4)
18. Respondent has no prior criminal convictions. (N.T. 16)
19. Respondent sought admission into [ ] County's Accelerated Rehabilitative Disposition Program ("ARD") as a first-time offender. He was denied admission because he was charged with leaving the scene.
20. Prior to Respondent's bench trial, the Commonwealth amended the offense of driving under the influence of alcohol or controlled substance: general impairment/incapable of safe driving to driving under the influence of alcohol or controlled substance: high rate of alcohol (BAC .10-.16) first offense.
21. Prior to the bench trial, the Commonwealth withdrew the failure to stop and render aid charge as well as accident involving damage to unattended vehicle or property charge, which had previously disqualified Respondent from entering ARD. (JE-4, N.T. 27-28, 48) It is unknown why he was not then permitted to enter the ARD program.
22. Respondent did not dispute the DUI charge and the case was submitted on admitted facts. (N.T. 10, 17, 26, 30-31, 48-49, 53)
23. On November 10, 2011, the Honorable [ ] found Respondent guilty of:
a. Title 75 Pa.C.S.A. Section 3802(b), Driving Under the Influence of Alcohol or a Controlled Substance: High Rate of Alcohol, (BAC .10-.16 First Offense, an ungraded misdemeanor;
b. Title 75 Pa.C.S.A. Section 3714(a), Careless Driving, a summary offense; and
c. Title 75 Pa.C.S.A. Section 3112(a)(3), Failure to Stop at a Red Signal, also a summary offense. (JE-14, JE-15)
24. On November 10, 2011, Respondent was sentenced to 48 hours to 6 months of incarceration and ordered to pay a fine of $500 plus the costs of prosecution. Respondent was also ordered to complete a CRN evaluation and comply with any recommendation for treatment, attend and complete a safe driving school, complete 48 hours of community service and undergo a drug and alcohol evaluation. Respondent was ordered to pay fines for each summary offense. (JE-15)
25. On December 2, 2011, Respondent reported to the [ ] County Prison and served 48 hours of incarceration. (JE-13)
26. Respondent has complied with all the terms and conditions of his parole. He was released from supervision on June 2, 2012. (JE-6, JE-13)
27. On November 18, 2011, Respondent reported his "non-serious" criminal conviction , as defined by former Pa.R.D.E. 214(i), to the Disciplinary Board. (JE-10)
28. The Pennsylvania EMS Report noted that Respondent was conscious but confused, verbal only when confronted with loud verbal stimuli. Respondent appeared lethargic and distant. Respondent's blood sugar level was tested with the result of 39 mg/dL. Emergency Medical technicians administered an IV glucose solution which raised Respondent's blood sugar level to 233 mg/dL. During transport post medication, Respondent's level of consciousness improved dramatically. (JE-2)
29. Within an hour of the accident, Respondent was evaluated by [ ], M.D. in the [ ] Hospital Emergency Room. Dr. [ ] noted "Pt was in a MVA with significant damage. Has no complaints. Sugar was low (33) at the scene and given D50. Appears sober - no clinical sign of ETOH..." (JE-3)
30 Respondent was suffering from hypoglycemia on April 1, 2011. (JE-8)
31. Respondent has acknowledged and admitted that as a diabetic he should not have been drinking. (N.T. 18)
32. Respondent has not consumed alcohol since the date of the accident. (N.T. 43)
33. Respondent expressed sincere remorse and cooperated fully with Petitioner. He is thankful no one was hurt in the accident and acknowledges that the circumstances could have been different. (N.T. 31-32)
III. CONCLUSIONS OF LAW
By his actions as set forth above, Respondent violated the following Rules:
1. RPC 8.4(b) - It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's.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
This matter is before the Disciplinary Board as a result of disciplinary proceedings instituted by way of a Petition for Discipline. The Petition charged violations of RPC 8.4(b) and Pa.R.D.E. 203(b)(1) due to Respondent's DUI and two related motor vehicle summary convictions. Based upon Pa.R.D.E. 214(e), "[a] certificate of conviction of an attorney for a crime shall be conclusive evidence of the commission of that crime in any disciplinary proceedings instituted against the attorney based upon the conviction." The sole issue at the disciplinary hearing is the extent of the discipline to be imposed. Pa.R.D.E. 214(f)(1).
Precedent has established that private discipline, generally a private reprimand, with or without probation, has been imposed for misconduct arising from a DUI conviction. See In re Anonymous No. 73 DB 1997, 47 Pa. D. & C. 4th 526 (1998); In re Anonymous No. 62 DB 91, 22 Pa.D. & C. 4th 187 (1993). A careful examination of the circumstances of the instant matter persuades the Board that such circumstances warrant discipline of a lesser degree than private reprimand.
Respondent credibly testified and established that he suffered a diabetic event on April 1, 2011. Respondent has no history of discipline or other criminal convictions, no clients were involved and no evidence was presented that any person was injured as a result of Respondent's actions. Importantly, Respondent self-reported the conviction, showed sincere remorse and cognizance that the outcome of the incident could have been worse, and fully cooperated with Petitioner.
Respondent acknowledged the role alcohol played in the incident and has ceased consumption of alcohol since that time. There is no evidence that Respondent has an alcohol addiction and is in need of supervision under the auspices of probation.
Respondent's criminal conviction necessitates discipline of the lightest degree; therefore, it is directed that an Informal Admonition be imposed on Respondent by Chief Disciplinary Counsel.
V. DETERMINATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously determines that the Respondent, [ ], shall receive an Informal Admonition. 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: ____________________________
Gabriel L. Bevilacqua, Board Chair
Board Members Todd, Momjian and Schwager recused.