Opinion
160 DB 2023
03-20-2024
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. SCOTT RICHARD SANDERSON Respondent
Attorney Registration No. 307560 (Lackawanna County)
ORDER
AND NOW, this 20th day of March, 2024, in accordance with Rule 215(g), Pa.R.D.E., the three-member Panel of the Disciplinary Board having reviewed and approved the Joint Petition in Support of Discipline on Consent filed in the above captioned matter; it is
ORDERED that SCOTT RICHARD SANDERSON be subjected to a PUBLIC REPRIMAND by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in Rule 204(a) and Rule 205(c)(9) of the Pennsylvania Rules of Disciplinary Enforcement.
JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(d)
Petitioner, the Office of Disciplinary Counsel ("ODC), by Thomas J. Farrell, Chief Disciplinary Counsel, and Jennifer E. Tobias, Disciplinary Counsel, and Scott Richard Sanderson, Esquire ("Respondent"), by and through his counsel, Edwin A. Schwartz, Esquire, respectfully petition the Disciplinary Board of the Supreme Court of Pennsylvania in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and in support thereof state:
1. ODC, whose principal office is situated at Office of Chief Disciplinary Counsel, Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. -Box 62485, Harrisburg, Pennsylvania 17106, 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 the aforesaid Enforcement Rules.
2. Respondent was admitted to practice law in the Commonwealth of Pennsylvania on October 15, 2009. Respondent is on active status, and maintains his office at 1 Terrace Drive, Olyphant, PA 18447 in Lackawanna County, Pennsylvania.
3. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
SPECIFIC FACTUAL ALLEGATIONS ADMITTED
4. On March 18, 2015, Timothy Bach ("Decedent") retained Respondent's brother, John Sanderson, III, and the Sanderson Law Firm to draft estate planning documents including a last will and testament ("Will"), and an irrevocable personal residence trust ("Residence Trust").
5. John Sanderson, III, and the Sanderson Law Firm were paid $1,845 for their services in drafting the estate documents.
6. The Sanderson Law Firm is owned by Respondent, Respondent's brother, John Sanderson, III, Esquire, and Respondent's father, John Sanderson, Jr., Esquire.
7. Decedent's Will directed his personal property to the care of his sister, for distribution as she desired.
8. Decedent's Will made two specific bequests in the amounts of $20,000 to Camp Victory, and $5,000 to Jonestown United Methodist Church.
9. Decedent's Will bequeathed his two vehicles to individual beneficiaries.
10. Decedent's Will contained a residual clause that provided for the remainder of the estate to pour over to a Revocable Trust, created March 18,2015, with five charities named beneficiaries.
11. The Revocable Trust contemplated a 3-year trust administration.
12. The Residence Trust named four beneficiaries: Decedent's three nieces ("Niece beneficiaries") and a friend, Daniel Elliott.
13. The estate documents named Respondent's brother, John Sanderson, III, Executor to the Estate and Successor Trustee to the Residence Trust.
14. The Will contemplates that Respondent's law firm will assist with estate administration.
15. Decedent died on April 9, 2018.
16. On April 20, 2018, Letters Testamentary were granted by the Register of Wills in Luzerne County, and estate file no. 4018-1645 was opened ("Estate").
17. After Letters of Administration were granted, John Sanderson, III, retained Respondent to act as attorney for the Executor and attorney for the Trustee of the Residence Trust.
18. Together, Respondent and John Sanderson, III, negotiated several fee agreements.
19. On April 20, 2018, John Sanderson, III, executed fee agreements to pay:
a. a flat fee of $25,000 to the Sanderson Law Firm for work as attorney for the Executor;
b. a flat fee of $25,000 to John Sanderson, III, for his work as Executor of Decedent's estate;
c. a fee equal to 22.7% of the gross real estate sale price of Decedent's residence and any other asset held by the Residence Trust to the Sanderson Law Firm, for work as attorney for the Trustee; and
d. a fee equal to 22.7% of the gross real estate sale price of Decedent's residence and any other asset held by the Residence Trust to John Sanderson, III, as Trustee of the Residence Trust.
Estate of Timothy Bach
20. Respondent agreed to act as attorney for the Executor.
21. In his role as attorney, Respondent was responsible for counseling the Executor in the administration of the Estate.
22. On May 4, 2018, John Sanderson, III, as Executor, opened an estate checking account and made an initial deposit of $161,990.10.
23. The initial deposit came from liquidation of two accounts in the amounts of $70,597.10 (American General Life) and $87,443 (Delaware Life), and $3,950 cash.
24. On or about May 4, 2018, John Sanderson, III, issued checks, drawn on the Estate checking account in the following amounts to the following payees:
a. $15,000 to the Sanderson Law Firm for "Installment #1" for the role of Attorney for the estate;
b. $15,000 to himself for "Executor Fee Installment #1"; and
c. $1,245.86 to Sanderson Law Firm for "Reimbursements for Estate Matter", which included reimbursement for gasoline for two vehicles totaling $270 from 4/9/18 through 5/5/18.
25. On or about May 4, 2018, John Sanderson, III, also issued checks to third parties for "clean up" and "financial advisor services" in the following amounts to the following payees:
a. $3,221.75 to Don Pettinato, for "Invoice for clean up of personal property"; and
b. $3,857.75 to Kelli Stevens for, inter alia inventorying perishable and nonperishable foods, purchasing supplies to box and wrap, bringing helpers to assist on several weekends, renting an enclosed trailer, inventorying clothing and delivering donated items to church, and for financial advisor services.
26. On the following dates in the following amounts, John Sanderson, III, issued checks, drawn on the Estate checking account, to himself for "reimbursement for storage unit" and "reimbursement for storage garage and rent":
a. $180.04 on May 16, 2018;
b. $136.69 on June 14, 2018; and
c. $136.69 on July 18, 2018.
27. On July 2, 2018, John Sanderson, III, issued checks, drawn on the Estate checking account, in the following amounts to the following payees:
a. $10,000 to the Sanderson Law Firm for Attorney Fee (second installment);
b. $10,000 to himself, for Executor Fee (second installment);
c. $329.00 to the Sanderson Law Firm for "reimbursement", including gasoline reimbursement of $294.00 for two vehicles from 5/6/18 through 7/2/18; and
d. $5,000 to the Sanderson Law Firm for "March 26, 2018 invoice".
28. The $5,000 paid to the Sanderson Law Firm for the "March 26, 2018 invoice" was for services allegedly rendered by the firm to Decedent prior to Decedent's death, investigating a potential medical malpractice matter.
29. On July 22, 2018, John Sanderson, III, issued checks, drawn on the Estate checking account, in the following amounts to the following payees:
a. $1,000 to Kimberly Sanderson, Respondent's wife, for "property cleanup of personal property"; and
b. $1,500 to Amanda Misencik for "property cleanup of personal property".
30. On July 29, 2018, John Sanderson, ill, issued checks, drawn on the Estate checking account, in the following amounts to the following payees: a. $500 to Respondent for "final house clean up and P.P. clean up";
b. $500 to himself for "final house clean up and P.P. clean up";
c. $850 to Kimberly Sanderson, Respondent's wife, for "final house clean up and P.P. clean up"; and
d. $850 to Amanda Misencik for "final house clean up and P.P. clean up".
31. Between April 2018 and October 2018, John Sanderson, III, made payments from the Estate account for administrative fees and costs, Decedent's debts, and related expenses totaling $3,964.25.
32. On or about October 3, 2018, John Sanderson, III, filed with Luzerne County Register of Wills a Rev-1500 Inheritance Tax Return.
33. According to the Rev-1500, Decedent's Gross Assets totaled $297,342.67.
34. Decedent's Gross Assets included Cash, Bank Deposits and Miscellaneous personal property in the amount of $205,094.46, and non-probate property totaling $92,248.21.
35. As of October 3, 2018, John Sanderson, III, had issued checks to Respondent and/or the Sanderson Law Firm drawn on the Estate account totaling $32,074.86.
36. As of October 3, 2018, John Sanderson, III, had issued checks to himself drawn on the Estate account totaling $25,953.42.
37. In Pennsylvania, both executor fees and attorney's fees in estate matters should be reasonable and just, and based on the actual value of service provided.
38. A schedule of percentages outlined in In re Johnson's Estate, 4 Fid. Rep.2d 6, 8 (O.C.Del.Co 1983) is commonly used both by practitioners and the courts as guidance in determining appropriate attorney's fees and executor commissions; these percentages are generally found by courts to be fair and reasonable.
39. The Attorney and Executor fees are in excess of that which would be calculated based on the Johnson Estate, and are excessive given the relatively simple administration involved in this estate.
40. Respondent, as attorney for the Executor, was aware of but did not object to or oppose John Sanderson, Ill's, actions as Executor, including payment of the excessive fees.
41. John Sanderson, III, did not include Decedent's personal residence located in Shickshinny, PA, with an estimated value of $320,000 on the initial Rev-1500 because, he believed, the asset was not part of Decedent's Gross Assets.
42. On or about January 30, 2019, John Sanderson, III, issued checks drawn on the Estate checking account, in the following amounts to the following payees, consistent with specific bequests in Decedent's Will:
a. $20,000 to Camp Victory; and
b. $5,000 to Jonestown Church.
Residence Trust
43. Respondent agreed to act as attorney for the Trustee of the Residence Trust.
44. In his role as attorney, Respondent was responsible for counseling the Trustee in the administration of the Residence Trust.
45. On or about June 8, 2018, John Sanderson, III, as Trustee, opened a Residence Trust checking account and made an initial deposit of $11,052.27.
46. The initial deposit into the Residence Trust checking account was a transfer from the Estate checking account and represented liquidation of a certificate of deposit which named the Residence Trust as beneficiary.
47. In addition to the certificate of deposit funds, the Residence Trust was comprised of Decedent's residence located at 62 Vandermark Road, Huntington Township, Shickshinny, PA, 18655.
48. On June 29, 2018, John Sanderson, III, issued checks, drawn on the Residence Trust checking account in the following amounts to the following payees:
a. $500 to Respondent for "property upkeep"; and
b. $500 to himself for "property upkeep".
49. On July 22, 2018, John Sanderson, III, issued checks, drawn on the Residence Trust checking account in the following amounts to the following payees:
a. $500 to Respondent for "property upkeep"; and
b. $500 to himself for "property upkeep".
50. On or about August 3,2018, John Sanderson, III, signed a listing agreement with RE/MAX Home Team, listing Decedent's residence for $329,900.
51. On October 15, 2018, John Sanderson, III, issued checks, drawn on the Residence Trust checking account in the following amounts to the following payees:
a. $500 to Respondent for "property upkeep"; and
b. $500 to himself for "property upkeep".
52. On or about October 21, 2018, John Sanderson, III, entered into an Agreement of Sale for Decedent's residence, for a purchase price of $320,000.
53. On November 2, 2018, a real estate closing took place on Decedent's residence.
54. On November 5, 2018 John Sanderson, III, deposited real estate closing proceeds of $250,891.68 into the Residence Trust checking account.
55. On November 5, 2018, John Sanderson, III, issued a check in the amount of $150,000 from the Residence Trust checking account to the Sanderson Law Firm for "Attorney/Trustee Fees".
56. Respondent, as attorney for the Trustee, was aware of but did not object to or oppose John Sanderson, Ill's, actions as Trustee, including payment of excessive fees.
57. As of November 5, 2018, proceeds from the sale of Decedent's residence, net of taxes, were due and owing to the Residence Trust beneficiaries, including the Niece beneficiaries and Daniel Elliott.
58. On February 1, 2019, John Sanderson, III, filed a Supplemental Rev-1500, to include the Residence Trust property as part of Decedent's estate.
59. According to the Supplemental Rev-1500, after deducting applicable taxes and real estate commissions, the net value of the Residence Trust was $296,280.78.
60. When combined with other assets reported on the initial Rev-1500, Decedent's gross estate assets, including the Residence Trust property, totaled $617,342.67.
61. In addition to: (i) the $150,000 paid to the Sanderson Law Firm from the Residence Trust checking account; (ii) the $25,000 paid to the Sanderson Law Firm and $25,000 to John Sanderson, III, for Executor/Attorneys fees from the Estate checking account; (iii) the $1,500 paid to Respondent and $1,500 paid to John Sanderson, III, for property upkeep from the Residence Trust checking account, and (iv) $500 paid to Respondent and $500 paid to John Sanderson, III, for property cleanup from the Estate checking account, on February 28, 2020, John Sanderson, III, issued checks, drawn on the Estate checking account in the following amounts to the following payees:
a. $1,750 to Respondent for "Revocable Trust administration; Attorney fee."; and
b. $1,750 to himself for "Revocable Trust setup; Trustee fee".
62. In total, Respondent, John Sanderson, III, and their law firm received in excess of $207,500, or over 33.5% of the gross value of Decedent's estate.
63. Respondent was aware of but did not object to or oppose payment of the excessive fees to himself, John Sanderson, III, and the Sanderson Law Firm.
Concealment, Failure to Provide an Accounting and Failure to Distribute
64. Prior to December 2018, neither John Sanderson, III, nor Respondent had any contact with the Niece beneficiaries.
65. In or about December 2018, the Niece beneficiaries requested Decedent's estate documents from the Luzerne County Prothonotary.
66. In or about December 2018, the Niece beneficiaries retained attorney Erik B. Jensen to assist them in obtaining their inheritance.
67. On January 2, 2019, Attorney Jensen emailed the Sanderson Law Firm to advise that he had been retained by the Niece beneficiaries.
68. Respondent's firm acknowledged receipt of the message.
69. On January 7, 2019, John Sanderson, III, wrote to the Niece beneficiaries and proposed a partial distribution of $20,000 to each, in exchange for a receipt and release ("Release"). John Sanderson, III, requested each beneficiary to sign and return the Release.
70. Respondent, as attorney to the Trustee, was aware of but did not oppose John Sanderson, Ill's, actions as Trustee to the Residence Trust.
71. The Niece beneficiaries refused to sign the Release, because they had not received an accounting from John Sanderson, III, Trustee or Respondent, and they did not want to release Respondent, John Sanderson, III, or the Sanderson Law Firm from their obligation to provide an accounting.
72. On January 9, 2019, Attorney Jensen emailed John Sanderson, III, seeking an update on the proceeds from the sale of Decedent's residence, requested an accounting, and inquired as to when distribution of funds would be made.
73. John Sanderson, III, and Respondent failed to respond, and failed to provide an accounting.
74. On January 17, 2019, Attorney Jensen again wrote to the Trustee, John Sanderson, III, and requested a complete accounting on behalf of his clients.
75. John Sanderson, III, and Respondent failed to promptly respond to the January 17,2019 email, failed to provide an accounting or otherwise disclose to the Niece beneficiaries that both Respondent and John Sanderson, III, had taken a $150,000 fee in November 2018.
76. On February 1, 2019, Respondent wrote to Attorney Jensen, on behalf of John Sanderson, III, Trustee.
77. Respondent stated in his February 1, 2019 letter to Attorney Jensen that he represents the Trust and its Trustee (John Sanderson, III), that the Niece beneficiaries contacted him prior to January 2, 2019, and he "provided each of them a detailed update on this matter."
78. Respondent's statement to Attorney Jensen that he had provided the Niece beneficiaries a "detailed update" was false and misleading, and Respondent knew this statement was false and misleading when made because Respondent understood that the Niece beneficiaries were inquiring about an accounting of proceeds from the sale of Decedent's residence, including real estate and attorneys fees, yet he had not provided this information.
79. Respondent's February 1, 2019 letter did not provide an accounting to the Niece beneficiaries, as requested.
80. On June 10, 2019, Respondent sent a letter to Attorney Jensen stating that the Decedent's Trust matter is ongoing, and the Trustee "remains willing and able to make partial distributions to your three clients."
81. This statement was untrue, because Respondent knew or should have known the Niece beneficiaries were requesting a full accounting before accepting a distribution, and Respondent did not provide one.
82. Respondent did not provide a breakdown of costs and disbursements to Attorney Jensen with the June 10, 2019 letter.
83. On July 9, 2019, Attorney Jensen faxed a letter to Respondent stating the last communication he received was on February 1, 2019, and that multiple attempts were made to contact Respondent, with no response.
84. On July 9, 2019, Respondent, as counsel to the Trustee, replied to Attorney Jensen, enclosing a copy of his June 10, 2019 letter to Attorney Jensen and confirming that he was acting on behalf of and at the direction of John Sanderson, III, Trustee.
85. Respondent continued to conceal the excessive fees; the July 9, 2019 letter still failed to provide an accounting.
86. On August 9, 2019, Attorney Jensen wrote to Respondent, requesting information concerning the Receipt and Release previously provided to the Niece beneficiaries, and the proposed amount of the partial payment.
87. On August 13, 2019, Respondent replied, informing Attorney Jensen the partial distribution would be $20,000.
88. At all times, Respondent and John Sanderson, III, attempted to conceal the excessive fees from the Niece beneficiaries.
89. On December 9, 2019, Respondent on behalf of John Sanderson, III, Trustee, emailed Attorney Jensen informing him that all inheritance taxes had been paid; Respondent attached a proposed final receipt and release (Second Release) for the Niece beneficiaries to sign.
90. This Second Release proposed a first and final payment of $38,679.87 to each Niece beneficiary in exchange for discharge, release, and indemnity for Respondent, John Sanderson, III, and their law firm.
91. The Niece beneficiaries refused to sign the Second Release, because they still had not received an accounting from the firm.
92. On January 17, 2020, Attorney Jensen's law clerk, at his direction, sent an email to Respondent and John Sanderson, III, stating that the Niece beneficiaries were concerned about the proposed final distribution amount of $38,679.87, believed there was an error, and were not comfortable signing the releases without first seeing a breakdown of costs and disbursements.
93. Respondent and John Sanderson, III, were again asked to provide this information.
94. Respondent again failed to advise Attorney Jensen, in writing, of the fees the Sanderson Law Firm and John Sanderson, III, had already taken from the Residence Trust.
95. On March 18, 2020, Attorney Jensen sent a letter to Respondent informing him the Niece beneficiaries believed there was some error in the proposed final payment amount and requested Respondent to provide a "breakdown of costs and disbursements to provide a better understanding of where the final payment amount is derived from."
96. On September 11, 2020, John Sanderson, III, sent a proposed final Receipt and Release to the Niece beneficiaries, but continued to conceal the excessive fees and failed to provide an accounting.
97. Respondent and John Sanderson, III, failed to provide an explanation why the proposed distribution to the four beneficiaries, totaling $154,719.48 was approximately $141,561.00 less than the net proceeds of the sale of Decedent's residence.
98. Between December 2018 and September 2020, Respondent and John Sanderson, III, failed to distribute to the Niece beneficiaries any undisputed portion of the trust corpus.
Revocable Trust
99. Decedent, at or about the time he executed other estate documents, executed a Revocable Trust Agreement on March 18, 2015 and an Amendment to Revocable Trust Agreement on or about January 13, 2017 (collectively, "Revocable Trust").
100. The Revocable Trust contemplated that upon Decedent's death, John Sanderson, III, as Successor Trustee, would receive the remainder and residue of Decedent's estate into the Trust and distribute the Trust to five identified charitable beneficiaries over a three year period, after which the Trust would terminate.
101. Respondent agreed to act as attorney for the Trustee for the Revocable Trust.
102. In his role as attorney, Respondent was responsible for counseling the Trustee in the administration of the Revocable Trust.
103. On or about September 24,2020, John Sanderson, III, opened a Revocable Trust checking account and made an initial deposit of $18,308.80.
104. This amount represented the remainder and residue of funds in the Estate checking account.
105. During the first year of the trust, 2020, John Sanderson, III, issued checks drawn on the Revocable Trust checking account in the amount of $1200 to each of the five name charity beneficiaries.
106. During the second year of the trust, 2021, John Sanderson, III, issued checks drawn on the Revocable Trust checking account in the amount of $1200 to each of the five named charity beneficiaries.
107. During the final year of the trust, 2022, John Sanderson, III, issued checks drawn on the Revocable Trust checking account in the amount of $1200 to each of the five named charity beneficiaries.
108. The Revocable Trust closed in 2023.
109. On April 4, 2023, John Sanderson, III, issued a check to the Bach Irrevocable Personal Residence Trust in the amount of $20,000 from his personal checking account.
110. On January 24, 2024, Respondent issued a check to the Bach Irrevocable Residence Trust in the amount of $75,000 from his personal checking account.
SPECIFIC RULES OF PROFESSIONAL CONDUCT VIOLATED
111. By his conduct as alleged in Paragraphs 5 through 110 above, Respondent violated the following Rules of Professional Conduct:
(a) RPC 1.5(a), which states "a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."
(b) RPC 1.15(e), which states" a lawyer shall promptly deliver to the client or third party any property.. .that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding the property."
(c) RPC 1.15(f), which states a "lawyer shall promptly distribute all portions of the funds or property.. as to which interests are not in dispute."
(d) RPC 8.4(a), which states "[i]t is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another".
(e) RPC 8.4(c), which states "it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
JOINT RECOMMENDATION FOR DISCIPLINE
112. Petitioner and Respondent jointly submit that the appropriate discipline for Respondent's misconduct is a public reprimand.
113. Respondent hereby consents to that discipline being imposed upon him. Attached to this Petition is Respondent's executed Affidavit required by Rule 215(d), Pa.R.D.E., stating that he consents to the recommended discipline and including the mandatory acknowledgements contained in Rule 215(d)(1) through (4), Pa.R.D.E.
114. In support of this Joint Petition, ODC and Respondent respectfully submit that the following mitigating circumstances are present:
a. Respondent is 41 years old and has been practicing 14 years; he has no prior record of misconduct;
b. Respondent has admitted his misconduct in violation of the charged Rules of Professional Conduct, and acknowledges his mistakes;
c. Respondent has accepted responsibility for his wrongdoing;
d. Respondent has expressed remorse for his actions;
e. Respondent has taken remedial action to correct his misconduct by reimbursing the Residence Trust checking account $75,000 from his personal funds;
f. Respondent has expressed his willingness to accept public discipline in the form of a public reprimand.
115. In acknowledging and admitting his misconduct, Respondent agrees that despite any claim that he acted at the direction of a supervising attorney, he is still bound by the Rules of Professional Conduct pursuant to RPC 5.2(a) which provides "a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acts at the direction of another person."
116. Respondent's misconduct involved entering into an agreement to collect a clearly excessive fee and/or assisting the Executor/Trustee in charging and collecting a clearly excessive fee in an estate matter, concealing the excessive fees from inquiring beneficiaries, and failing to promptly provide an accounting or to deliver funds. This conduct is deserving of public discipline.
117. Precedent supports imposition of public reprimand for a respondent-attorney whose misconduct includes charging and collecting an excessive fee, and attempting to conceal the excessive fees. Office of Disciplinary Counsel v. Timothy M. Kolman, 177 DB 2023, (D.Bd. Order 12/26/23) (public reprimand on consent where respondent, inter alia, charged an excessive, unearned fee); Office of Disciplinary Counsel v. Robert Ira Lipkin, 120 DB 2018, (D. Bd. Order 5/3/19) (public reprimand imposed on consent to respondent with no prior record of discipline who collected excessive fees in two client matters); Office of Disciplinary Counsel v. Venus Foster, 99 DB 2017, (D.Bd. Order 4/23/20) (public reprimand on consent for respondent with a record of private discipline who charged and collected a fee from her client that exceeded the percentage and amount agreed upon in the fee agreement); compare Office of Disciplinary Counsel v. Alan Kane, 2934 DD3, No. 77 DB 2021 (D. Bd. Rpt. 12/13/2022) (S, Ct. Order 3/8/2023), where after disciplinary hearing, the Court adopted the recommendation of the Disciplinary Board and suspended respondent for one-year and one-day based on conduct in one client matter. Kane prioritized his own fees over the interests of his client, and attempted to mislead the client as to his entitlement to fees, violating RPC 8.4(c). In contrast to the instant matter, Kane failed to acknowledge his misconduct or exhibit genuine remorse, and commenced a lawsuit against his client for his fees.
118. ODC and Respondent jointly submit that Respondent's reimbursement of $75,000 to the Residence Trust, expression of remorse, and cooperation in these proceedings constitute significant mitigation and weigh favorably against more serious discipline. Disciplinary precedent supports consideration of mitigating factors in assessing appropriate discipline. Office of Disciplinary Counsel v. Lawrence L Rubin, 90 D.Bd. Rpt. Oct 11,2011 (D. Bd. Rpt. 3/24/21 (S.Ct. Order 6/4/21) (a respondent's remorse and cooperation with disciplinary proceedings are mitigating factors); See also Office of Disciplinary Counsel v. John William Eddy, 143 DB 2019 (D. Bd. Rpt. 3/24/21) (S.Ct. Order 6/4/21) (a respondent's payment of restitution to clients is a mitigating factor) and Office of Disciplinary Counsel v. Anthony Charles Mengine, 66 DB 2017 (D. Bd. Rpt. 9/24/2019 at p. 55-56) (S.Ct. Order 11/26/2019) (restitution to clients "may properly be considered as mitigation").
WHEREFORE, ODC and Respondent respectfully request that your Honorable Board:
a. approve this Joint Petition and schedule imposition of a public reprimand; and
b. pursuant to Pa.R.D.E. 215(i), enter an Order for Respondent to pay the necessary expenses incurred in the investigation and prosecution of this matter.
Respectfully submitted, OFFICE OF DISCIPLINARY COUNSEL
Thomas J. Farrell, Chief Disciplinary Counsel
DATE 3/7/24
JENNIFER E. TOBIAS, ESQUIRE
Disciplinary Counsel
Attorney Registration Number 82816
Office of Disciplinary Counsel
601 Commonwealth Avenue, Suite 5800
Harrisburg, PA 17106
DATE 2/29/2024
SCOTT RICHARD SANDERSON, ESQUIRE
Respondent
Attorney Registration Number 307560
EDWIN A. SCHWARTZ, ESQUIRE
Counsel for Respondent
Attorney Registration Number 75902
DATE 3/1/2024VERIFICATION
The statements contained in the foregoing Joint Petition In Support of Discipline on Consent are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities.
AFFIDAVIT UNDER RULE 215(d), Pa. R.D.E.
SCOTT RICHARD SANDERSON, being duly sworn according to law, deposes and submits this affidavit consenting to the recommendation of a public reprimand in conformity with Pa. R.D.E. 215(d), and further states as follows:
1. He is an attorney admitted to the Bar of the Commonwealth of Pennsylvania on or about October 15, 2009.
2. He desires to submit a Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d).
3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.
4. He is aware that there is presently pending a proceeding regarding allegations that he has been guilty of misconduct as set forth in the Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) to which this affidavit is attached.
5. He acknowledges that the material facts set forth in the Joint Petition are true.
6. He submits this affidavit because he knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.
7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has retained, consulted, and acted upon the advice of Edwin A. Schwartz, Esquire, in connection with his decision to execute the Joint Petition.
It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 (relating to unsworn falsification to authorities).
Signed this 29th day of February 2024.
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.