Opinion
No. 209 DB 2014
01-22-2015
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. OREST BEZPALKO, II Respondent
File Nos. C1-12-1094 & C1-13-1014 Attorney Registration No. 87599 (Philadelphia) PUBLIC REPRIMAND
Orest Bezpalko, II, you stand before the Disciplinary Board, your professional peers and members of the public for the imposition of a Public Reprimand. It is an unpleasant task to publicly reprimand one who has been granted the privilege of membership in the bar of this Commonwealth. Yet as repugnant as this task may be, it has been deemed necessary that you receive this public discipline.
Mr. Bezpalko, you are being reprimanded for your conduct in two matters. You were retained to represent Emy De La Rosa in an immigration matter by filing with the United States Custom and Immigration Service ("USCIS") an application for Lawful Permanent Residence, known as "I-485". You quoted a legal fee of $1,250 plus the requisite filing fee of $1,490, for a total of $2,740. Over a period of time, your client paid you the total sum of $1,950, which included the filing fee of $1,490. You were required by the Rules to place fees and expenses paid in advance in a trust account until the time the fees were earned or incurred.
You prepared documentation to file with USCIS, including the I-485. Over a period of several months, you made several requests of USCIS regarding the status of the I-485. USCIS informed you that the documentation could not be found. Although you point to deductions from your operating account in the amount of $1,490 during the appropriate time frame as an indication that USCIS received the application, there is no determinative evidence of the fact that the amount deducted from the operating account related to the De La Rosa application.
In response to inquiries made by Office of Disciplinary Counsel concerning the failure to deposit the filing fee into an IOLTA account, you admitted that you did not maintain ledger sheets or a check register concerning deposits, withdrawals, transfers or otherwise from the accounts. It is unclear as to where you deposited the attorney fee/filing fee. However, at no time during the period in which you would have been responsible to maintain the filing fee, did the daily balance fall below the requisite $1,490.
In the second matter, on March 1, 2013, you were arrested and charged with aggravated assault, simple assault, recklessly endangering another person, and harassment, arising out of a domestic incident where you struck and choked your wife. You ultimately pleaded nolo contendere to a charge of disorderly conduct as a misdemeanor of the third degree, based, in part, on your wife's reluctance to testify. You were sentenced to 12 months non-reporting probation with conditions. You completed the probationary period without incident.
In connection with this disciplinary proceeding, you submitted two mental health reports: one from Marquita Bolden, your treating Licensed Clinical Social Worker, and the other from Robert L. Sadoff, M.D., a consulting psychiatrist. These reports reveal a consensus diagnosis of Post-Traumatic Stress Disorder ("PTSD"), with a current diagnosis made by your therapist of major depressive disorder and anxiety disorder. These reports make clear that you must continue to receive psychotherapy with the aid of a psychiatrist.
As part of your disciplinary sanction, you have been placed on Probation for a period of three years, subject to conditions which include continued treatment. Failure to abide by the terms of your Probation shall be grounds for further disciplinary action.
We note that you have no other professional discipline of record.
Your conduct in the two matters has violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:
1. RPC 1.15(b) - A lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer's own property. Such property shall be identified and appropriately safeguarded.
2. RPC 1.15(c) - Complete records of the receipt, maintenance and disposition of Rule 1.15 Funds and property shall be preserved for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later. A lawyer shall maintain the following books and records for each Trust Account and for any other account in which Fiduciary Funds are held pursuant to Rule 1.15(I):
a. All transaction records provided to the lawyer by the Financial Institution or other investment entity, such as periodic statements, cancelled checks, deposited items and records of electronic transactions; and
b. Check register or separately maintained ledger, which shall include the payee, date and amount of each check, withdrawal and transfer, the payor, date and amount of each deposit, and the matter involved for each transaction.
3. RPC 1.15(i) - A lawyer shall deposit into a Trust Account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a different manner.
4. 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.
5. Pa.R.D.E. 203(b)(1) - Conviction of a crime shall be grounds for discipline.
Mr. Bezpalko, your conduct in this matter is now fully public. This Public Reprimand is a matter of public record. As you stand before the Board today, we remind you that you have a continuing obligation to abide by the Rules of Professional Conduct and Rules of Disciplinary Enforcement. This Public Reprimand is proof that Pennsylvania lawyers will not be permitted to engage in conduct that falls below professional standards. Be mindful that any future dereliction will subject you to disciplinary action.
This Public Reprimand shall be posted on the Disciplinary Board's website at www.padisciplinarvboard.org.
/s/_________
Designated Member
The Disciplinary Board of the
Supreme Court of Pennsylvania
Administered by a designated panel of three Members of The Disciplinary Board of the Supreme Court of Pennsylvania, at Harrisburg, Pennsylvania, on March 27, 2015.
ACKNOWLEDGMENT
The undersigned, Respondent in the above proceeding, herewith acknowledges that the above Public Reprimand was administered in his presence and in the presence of the designated panel of The Disciplinary Board at Courtroom #3002, Pennsylvania Judicial Center, 601 Commonwealth Avenue, Harrisburg, Pennsylvania, on March 27, 2015.
/s/_________
Orest Bezpalko, II