Opinion
No. 81 DB 2016
06-29-2017
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. WILLIAM JAMES HELZLSOUER Respondent
IN THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. WILLIAM JAMES HELZLSOUER Respondent No. 2393 Disciplinary Docket No. 3 ORDER
PER CURIAM
AND NOW, this 27th day of September, 2017, upon consideration of the Report and Recommendations of the Disciplinary Board, William James Helzlsouer is suspended from the Bar of this Commonwealth for a period of three months. Respondent shall comply with all the provisions of Pa.R.D.E. 217 and pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g).
Respondent's request for oral argument is denied. See Pa.R.D.E. 208(e)(4). Respondent's Petition for Review is dismissed as untimely.
Justice Baer did not participate in the consideration or decision of this matter. A True Copy Patricia Nicola
As Of 9/27/2017 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania Attorney Registration No. 17300 (Allegheny County)
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 May 26, 2016, Office of Disciplinary Counsel charged William James Helzlsouer, Respondent, with violation of the Rules of Professional Conduct ("RPC") and Pennsylvania Rules of Disciplinary Enforcement ("Pa.R.D.E.") arising from his representation of his clients in a civil action. Respondent filed an Answer to Petition for Discipline on June 22, 2016.
A disciplinary hearing was held on September 13, 2016, before a District IV Hearing Committee comprised of Chair Neva L. Stotler, Esquire, and Members Kirsten J. Sigurdson, Esquire, and Anne N. John, Esquire. Petitioner's Exhibits ("PE") Nos. 1 through 14 were offered and admitted into evidence. Administrative Exhibits ("AE") 1 and 2, along with the Stipulation of Facts marked as Administrative Exhibit 3, were offered and admitted into evidence. Respondent, who represented himself, testified on his own behalf but offered no other witnesses or evidence. At the conclusion of the hearing, the record was closed.
Following the submission of a brief by Petitioner, the Hearing Committee filed a Report on January 27, 2017, concluding that Respondent violated the Rules of Professional Conduct and Pennsylvania Rule of Disciplinary Enforcement as contained in the Petition for Discipline, and recommending that a public censure be imposed.
The parties did not take exception to the Hearing Committee's recommendation.
The Board adjudicated this matter at the meeting on April 28, 2017.
II. FINDINGS OF FACT
The Board makes the following findings:
1. Petitioner, Office of Disciplinary Counsel, whose principal office is located at 601 Commonwealth Avenue, Suite 2700, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement ("Pa.R.D.E."), with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules.
2. Respondent is William James Helzlsouer. He was born in 1948 and was admitted to practice law in the Commonwealth of Pennsylvania in 1973. His attorney registration address is 302 Euclid Avenue, Dravosburg, Allegheny County, PA 15034.
3. Respondent has a prior record of discipline:
a. On December 8, 2010, a private reprimand was administered for Respondent's violations of RPC 1.3, 1.4(a)(3) and 1.4(a)(4). This discipline was based on Respondent's lack of diligence and communication in handling an estate matter. PE 13.
b. By Order of the Supreme Court dated June 5, 2012, Respondent was suspended on consent for a period of three months, stayed in its entirety with a period of probation for three months with a practice monitor. The suspension was based on Respondent's violation of RPC 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(a)(4), 1.5(b), 1.5(c), 1.16(d), and 8.4(d) for neglect, failure to communicate, and other misconduct in three client matters. Respondent completed his probation in 2012. PE 14
4. In July 2014, Laura Bivona and Kelly Davis ("Plaintiffs") retained Respondent to represent them in a civil action against Smith Grove Campground, Inc. AE 3.
5. At or about the time of Respondent's retention, Plaintiffs paid him the sum of $1,200. AE 3.
6. On July 23, 2014, in the Court of Common Pleas of Butler County, at docket number 2014-10667, Respondent filed a Complaint to Enjoin Non-Judicial Eviction of Plaintiffs for Breach of Contract and Exemplary Damages against Smith Grove Campground, Inc. AE 3, PE 1.
7. Respondent filed an Amended Complaint on July 25, 2014. AE 3.
8. On August 6, 2014, counsel for Defendant filed preliminary objections to the complaint. AE 3.
9. By Order dated September 24, 2014, the Butler County Court of Common Pleas granted Defendant's preliminary objections in part, dismissing the claim to enjoin the non-judicial eviction of Plaintiffs and the claim for exemplary damages. AE 3.
10. On October 28, 2014, Defendant filed an Answer to Plaintiffs' Amended Complaint and New Matter and Counterclaim. Respondent failed to file a reply to Defendant's New Matter and Counterclaim on behalf of Plaintiffs, nor did he file a second Amended Complaint following the partial grant of Defendant's preliminary objections. AE 3.
11. On October 28, 2014, Defendant filed a notice of Service of Requests for Admissions, Interrogatories and Request for Production of Documents and served Respondent with same. AE 3.
12. Respondent did not file a responsive pleading to the New Matter or Counterclaim nor did he file a response on behalf of Plaintiffs to Defendant's Request for Admissions, Interrogatories and Request for Production of Documents. AE 3.
13. By virtue of Plaintiffs' failure to respond to Defendant's Request for Admissions within thirty days from the date of service, in accordance with Pennsylvania Rule of Civil Procedure 4014, all of the Requests for Admissions were deemed admitted. AE 3.
14. On or about December 23, 2014, Defendant filed a Motion to Close the Pleadings, which was granted on the same day. AE 3, PE 2, PE 3.
15. On December 31, 2014, Defendant filed a Praecipe for Reference to Arbitrators and Appointment of Arbitrators, whereupon the matter was scheduled for arbitration on March 16, 2015. AE 3.
16. The arbitration was conducted on March 16, 2015, at which time Respondent appeared on behalf of Plaintiffs. An Award of Arbitrators on that date found for Defendant in the sum of $5,449.97. No sum was awarded to Plaintiffs. AE 3, PE 4.
17. On April 15, 2015, Respondent filed a Praecipe for Appeal from Arbitration on behalf of Plaintiffs. AE 3.
18. On April 16, 2015, the Butler County Court of Common Pleas issued an Order scheduling a pre-trial conference and setting forth a due date for submission of the parties' pre-trial statements. AE 3.
19. Defendant filed its pre-trial statement on May 1, 2015. Respondent failed to file a pre-trial statement on behalf of Plaintiffs. AE 3.
20. On June 11, 2015, Defendant filed a Motion in Limine arguing, inter alia, that based upon Plaintiff's deemed admissions, the issues to be heard at trial should be limited to proof of Defendant's damages and proof of the attorney's fees incurred by Defendant. By Order dated June 11, 2015, the Court granted the motion, thereby precluding Plaintiffs from offering testimony or evidence on any issues outside of the amount of Defendant's damages and the amount of Defendant's attorney's fees. AE 3, PE 5, PE 6.
21. On June 24, 2015, a non-jury trial was held on the issues of Defendant's damages and attorney's fees at which time Respondent appeared on behalf of Plaintiffs. AE 3.
22. On June 24, 2015, Judge Marilyn Horan of the Butler County Court of Common Pleas, issued Background, Findings of Fact, Discussion, Conclusions of Law and a Decision which found, inter alia:
a. In favor of Defendant and against Plaintiffs, for all of Plaintiffs' claims against Defendant in their Amended Complaint;
b. In favor of Defendant and against Plaintiffs in the counterclaim filed by Defendant; and
c. Entering an award for damages in favor of Defendant in the sum of $9,274.63.
AE 3, PE 7.
23. Petitioner sent a Letter of Inquiry in the within matter to Respondent by certified mail dated October 27, 2015, which letter was received by Respondent on October 28, 2015. AE 3, PE 8.
24. By letter dated November 30, 2015, to Petitioner, Respondent requested a thirty-day extension to respond to the Letter of Inquiry, due to personal family problems. AE 3, PE 9.
25. On December 1, 2015, Petitioner acknowledged receipt of Respondent's November 30, 2015, letter and informed him that his request for a thirty-day extension was granted, with the expectation that Respondent's response would be received on or before December 26, 2015. AE 3, PE 10.
26. By letter dated December 28, 2015, Respondent indicated that he was "finishing up" his response and needed three additional days to do so. AE 3, PE 11.
27. Respondent did not submit a response within the three days. AE 3.
28. On May 26, 2016, Petitioner contacted Respondent to advise that the Petition for Discipline would be personally served on him. AE 3.
29. Respondent submitted a response to the Letter of Inquiry on May 31, 2016. AE 3, PE 12.
30. Respondent accepted personal service for the Petition for Discipline on May 31, 2016. AE 3.
31. Respondent credibly testified at the hearing that although he experienced personal, family problems during the time frame of the misconduct, he has no excuse for how he handled his clients' matter. N.T. 17-18.
32. Respondent understands that his misconduct is serious, as he is expected to act in a professional manner and zealously represent his clients. N.T. 18-19.
33. Respondent accepted responsibility for his actions, stating "...I did not serve this client well. There is not much more I can say about that." N.T. 20-21.
III. CONCLUSIONS OF LAW
By his conduct as set forth above, Respondent violated the following Rules of Professional Conduct:
1. RPC 1.1 - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
2. RPC 1.3 - A lawyer shall act with reasonable diligence and promptness in representing a client.
3. Pa.R.D.E. 203(b)(7) - Failure by a respondent-attorney without good cause to respond to Disciplinary Counsel's request or supplemental request under Disciplinary Board Rule §87.7(b) for a statement of the respondent-attorney's position shall be grounds for discipline.
IV. DISCUSSION
Disciplinary proceedings were instituted against Respondent by way of a Petition for Discipline filed on May 26, 2016, charging Respondent with professional misconduct in relation to Respondent's representation of his clients in a civil case. The Petition charged Respondent with violating RPC 1.1, RPC 1.3 and Pa.R.D.E. 203(b)(7). Petitioner must establish by a preponderance of clear and satisfactory evidence that Respondent's actions constitute professional misconduct. Office of Disciplinary Counsel v. Robert Surrick , 749 A.2d 441, 444. Pa. 2000. Respondent stipulated to the factual allegations contained in the Petition for Discipline and stipulated at the hearing that he violated the Rules of Professional Conduct. We conclude that Petitioner met its burden and that Respondent violated RPC 1.1, 1.3 and Pa.R.D.E. 203(b)(7).
Respondent violated RPC 1.1 by failing to exhibit the requisite competence in professional matters. It is uncontroverted that Respondent failed to take action in his clients' civil case after he filed an amended complaint. This inaction constitutes an inexcusable lack of proficiency in the basic elements required to properly handle a legal matter.
Respondent's actions exhibited a reasonable lack of diligence and promptness in representing his clients, in violation of RPC 1.3. He failed to file necessary pleadings, specifically a reply to Defendant's new matter or counterclaim, and he failed to file a second amended complaint on behalf of his clients. Respondent failed to respond to Defendant's Request for Admissions, Interrogatories or Request for Production of Documents. Although he filed a Praecipe for Appeal from Arbitration on behalf of his clients, Respondent subsequently failed to file a pretrial statement on their behalf, and failed to file a response to Defendant's Motion in Limine to limit issues to be heard at the time of trial.
Respondent's dilatory efforts continued in his own disciplinary matter, as he failed to timely provide a response to the Letter of Inquiry until May 31, 2016, after he had been put on Notice that a Petition for Discipline had been filed in the within matter. However, Respondent cooperated with Petitioner by agreeing to be served with the Petition and later entering into stipulations of fact, which saved Petitioner the effort of securing the presence of witnesses at the hearing.
Respondent admitted on the record that he committed professional misconduct and accepted responsibility for his actions, stating "...I did not serve this client well. There is not much more I can say about that." N.T. 20-21.
Having concluded that Respondent violated the Rules, this matter is ripe for the determination of discipline. The Hearing Committee recommended a public censure and the parties did not take exception to this recommendation. After review, and 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. 4th 115 (2004), we recommend that Respondent be suspended from the practice of law for a period of three months.
A disciplinary case such as this, involving one client matter and no dishonest actions on the part of the attorney, might result in private discipline. However, Respondent has a history of discipline, which is an aggravating factor and heightens the severity of the discipline. The evidence demonstrates that Respondent was subject to two prior sanctions. On December 8, 2010, Respondent received a private reprimand for his violations of RPC 1.3, 1.4(a)(3) and 1.4(a)(4) in his handling of an estate matter. By Order of June 5, 2012, the Supreme Court of Pennsylvania suspended Respondent for three months, stayed in the entirety with a probation period of three months. Therein, Respondent engaged in misconduct in three client matters, in violation of RPC 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(a0(4), 1.5(b), 1.5(c), 1.16(d) and 8.4(d). Respondent completed his probationary period in 2012. The Board notes that Respondent's prior acts of misconduct are similar to the misconduct in the instant matter.
While there is no per se discipline in Pennsylvania, the Board examines precedent for the purpose of measuring "the [R]espondent's conduct against other similar transgressions." In re Anonymous , No. 56 DB 1994, 28 Pa. D. & C. 4th 398 (1995). The Supreme Court of Pennsylvania will consider applicable precedents, "being mindful of the need for consistency in the results reached in disciplinary cases so that similar misconduct is not punished in radically different ways." Office of Disciplinary Counsel v. Robert S. Lucarini , 472 A.2d 186, 189-91 (Pa. 1983). Herein, a short suspension is consistent with discipline imposed on attorneys who have neglected clients and have a record of discipline for similar actions.
A six month period of suspension was imposed in the matter of Office of Disciplinary Counsel v. Norman Orville Scott , 99 DB 2015 (D. Bd. Rpt. 6/22/2016) (S. Ct. Order 8/17/2016). The respondent-attorney failed to diligently represent, consult, and communicate with clients in two separate matters, and engaged in conduct prejudicial to the administration of justice. Similar to the instant matter, the respondent-attorney failed to timely respond to Office of Disciplinary Counsel's Letter of Inquiry. The respondent-attorney's prior disciplinary record of an informal admonition and a public reprimand with probation aggravated the matter. In mitigation, the respondent-attorney cooperated with Office of Disciplinary Counsel by entering into stipulations of fact.
In another similar matter, a respondent-attorney who neglected two client matters to an extreme degree and who had a prior record of discipline consisting of an informal admonition and a private reprimand was suspended for a period of six months, followed by probation for one year. Office of Disciplinary Counsel v. Melanie D. Naro , 52 DB 2011 (D. Bd. Rpt. 3/6/2012) (S. Ct. Order 7/12/2012).
The misconduct in the instant matter is less serious when compared to the facts of the above-cited cases, because Respondent's conduct involved one client matter and did not prejudice the administration of justice. The Board concludes that Respondent's actions warrant suspension, but for a shorter duration than the cited cases. The instant misconduct marks Respondent's third involvement with the disciplinary system in less than ten years. A suspension of three months is warranted to comply with the decisional law reviewed above, and to call attention to Respondent's pattern of neglect.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the Respondent, William James Helzlsouer, be Suspended for a period of three months from the practice of law in this Commonwealth.
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/_________
Jane G. Penny, Board Member Date: 06.29.17