Opinion
No. 1482 Disciplinary Docket No. 3 No. 53 DB 2009 Attorney Registration No. 30252
10-30-2011
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. GARY C. HOICKER, Respondent
(Philadelphia)
ORDER
:
AND NOW, this 2nd day of November. 2011, there having been filed with this Court by Gary C. Hoicker his verified Statement of Resignation dated July 30, 2011, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is
ORDERED that the resignation of Gary C. Hoicker is accepted; he is disbarred on consent from the Bar of the Commonwealth of Pennsylvania; and he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.
BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL Petitioner
v.
GARY C. HOICKER
Respondent
No. 1482 Disciplinary Docket No. 3
No. 53 DB 2009
Attorney Registration No. 30252
(Philadelphia)
RESIGNATION BY RESPONDENT
Pursuant to Rule 215
of the Pennsylvania Rules of Disciplinary Enforcement
BEFORE THE DISCIPLINARY BOARD OF
THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
GARY C. HOICKER, Respondent
No. 1482 Disciplinary Docket No. 3
No. 53 DB 2009
Attorney Registration No. 30252
(Philadelphia)
RESIGNATION
UNDER PENNSYLVANIA RULE OF DISCIPLINARY ENFORCEMENT 215
Gary C. Hoicker hereby tenders his unconditional resignation from the practice of law in the Commonwealth of Pennsylvania in conformity with Pa.R.D.E. 215, and further states as follows:
1. He was admitted to the bar of the Commonwealth of Pennsylvania on or about October 12, 1979. His attorney identification number is 30252. He is currently serving a two-year stayed suspension and serving a probationary period of two and one-half years pursuant to a Joint Petition in Support of Discipline on Consent Under Pa.R.D.E. 215(d) ("Joint Petition") filed on November 23, 2009, and granted on February 17, 2010. A true and correct copy of the Joint Petition is attached hereto as Exhibit "A."
2. He remains subject to the exclusive disciplinary jurisdiction of the Supreme Court of Pennsylvania, see Pa.R.D.E. 201(a)(3), and would be subject to additional discipline if he were to violate the terms and conditions of his probation, see Pa.R.D.E. 208(h).
3. He desires to submit his resignation as a member of the bar.
4. His resignation is freely and voluntarily tendered; he is not being subjected to coercion or duress and he is fully aware of the implications of submitting this resignation.
5. He is aware that disciplinary proceedings were instituted against him as a result of criminal convictions in the Delaware County Court of Common Pleas and the Montgomery County Court of Common Pleas See Joint Petition at 4 through 15. In particular, in Delaware County he was convicted of the offenses of driving under the influence of alcohol and a controlled substance, in violation of 75 Pa.C.S. §3802(d), and recklessly endangering another person, in violation of 18 Pa.C.S. § 2705; in Montgomery County he was convicted of the offense of harassment, in violation of 18 Pa.CS. § 2709(a)(1).
6. He is aware that he currently remains on disciplinary probation as a result of his criminal convictions.
7. He no longer wishes to be subject to or comply with the conditions of his disciplinary probation.
8. He is aware that based on his statements to the Office of Disciplinary Counsel that he no longer wishes to comply with the conditions of his disciplinary probation, there is a presently pending investigation.
9. He acknowledges that the material facts upon which the criminal charges are based are true.
10. He acknowledges that each of his Delaware County convictions constitutes a per se ground for discipline under Pa. R.D.E 203 (b) (1).
11. He submits the within resignation because he knows that if he were to violate the terms of his probation he could not successfully defend himself against the resulting charges of professional misconduct.
12. He is fully aware that the within resignation statement is irrevocable and that he can only apply for reinstatement to the practice of law pursuant to the provisions of Pa. R.D.E218.
13. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not retained, consulted with or acted upon the advice of counsel in connection with his decision to execute the within resignation.
14. It is understood that the statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to authorities).
Gary C. Hoicker
Respondent
Attorney Registration No. 30252
Witness: _____________
BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
GARY C. HOICKER,
Respondent
No. 1482 Disciplinary Docket No. 3
No. 53 DB 2009 .
Atty. Reg. No. 30252
(Philadelphia)
JOINT PETITION IN SUPPORT OF DISCIPLINE
ON CONSENT UNDER Pa.R.D.E. 215(d)
Petitioner, Office of Disciplinary Counsel ("ODC"), by Paul J. Killion, Chief Disciplinary Counsel, and Carmen C. Nasuti, Disciplinary Counsel, and by Respondent, Gary C. Hoicker, Esquire and his counsel,. Stuart L. Haimowitz, Esquire, file this Joint Petition in Support of Discipline on Consent Under Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and respectfully represent that:
1. Petitioner, whose principal office is situated at PA 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 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 of Disciplinary Enforcement.
Exhibit A
2. Respondent, Gary C, Hoicker, was born on September 10, 1954 and was admitted to practice law in the Commonwealth of Pennsylvania on October 12, 1979. His most recently registered office address is 42 S. 15th Street, Suite 1316, Phi1adelphia, PA 19102. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
3. By Order dated July 1, 2009, the Supreme Court referred Respondent's conviction matters, as set forth below, to the Disciplinary Board pursuant to Pa.R.D.E. 214(f)(1) and (g) . A true and correct copy of the Order is attached as "Appendix A."
CONVICTION I
4. On September 26, 2008, Respondent was charged in Delaware County with aggravated assault, in violation of 18 Pa.C.S. §2702; driving under the influence, in violation of 75 Pa.C.S. §3802 (a) (1); driving under the influence of a controlled substance, in violation of 75 Pa.C.S. §3802 (d); and recklessly endangering another person, in violation of 18 Pa.C.S. §2705.
5. . On February 17, 2009, Respondent entered a plea of guilty in the Court of Common Pleas of. Delaware County to Criminal No. CP23-CR-0007878-2008 to the offenses of driving under the influence of alcohol and a controlled substance, to wit, cocaine, in violation of 75 Pa.C.S. §3802(d), and reckless endangering another person, in violation of 18 Pa.C.S. §2705.
6. On February 17, 2009, on the charge of driving under the influence, the Honorable Kevin Kelly sentenced Respondent to imprisonment for a period of ninety days to twenty-three months, with the minimum term to be served on 45 consecutive weekends commencing on March 27, 2009; a consecutive term of probation of three years; and a fine of $1,500. On the charge of reckless endangerment, Judge Kelly imposed a two-year term of probation to run consecutively to the probation on the driving under the influence charge, for a total term of probation of five years. Judge Kelly also ordered that Respondent complete a CRN Evaluation, perform ninety-six hours of community service, undergo drug-and-alcohol evaluation and a psychological evaluation, and pay- a $100 mandatory cost assessment.
7. The conviction for driving under the influence was Mr. Hoicker's "second offense" for sentencing purposes (first DUI conviction on July 23, 2003.) and therefore is graded as a misdemeanor of the first degree, 75 Pa.C.S. §3803(b)(4), punishable by imprisonment of not less than ninety days, 75 Pa.C.S. §3804(c)(2), and not more than five years, 18 Pa.C.S. §§106(b)(6) and 1104(1).
8. The conviction of reckless endangerment is a misdemeanor of the second degree, 18 Pa.C.S. §2705, punishable by imprisonment of not more than two years, id. §§106 (b) (7) and 1104(2).
9. Each of the two crimes to which Respondent pled guilty is a "serious crime" as defined by Pa.R.D.E. 214(i).
10. Respondent's convictions constitute a per se basis for discipline under Pa.R.D.E. 203(b)(1).
11. Respondent acknowledges that his conduct as set forth in paragraphs 4 through 10 violated the following Rule of Disciplinary Enforcement:
a. Pa.R.D.E. 203 (b) (1), which provides that conviction of a crime which under Enforcement Rule 214 (relating to attorneys convicted of crimes) may result in suspension, shall be grounds for discipline.
CONVICTION II
12. On August 18, 2008, Respondent was charged in Montgomery County with harassment, in violation of 18 Pa.C.S. §2709(a) (4) and §2709 (a)(1).
13. On January 13, 2009, Respondent entered a plea of guilty in the Court of Common Pleas of Montgomery County under criminal docket No. CP-46-CR-0007690-2008 to the offense of harassment, in violation of 18 Pa.C.S. §2709(a)(1).
14. On January 13, 2009, the Honorable Richard J. Hodgson sentenced Respondent to three months of probation and to pay a fine of $100. The special conditions of probation are that Respondent serve twelve hours of community service; pay $30 per month as an offender supervision fee; have no contact with the victim, David Resnick, or his family; and write, a letter of apology to the victim.
15. The crime of harassment is graded as a summary offense, 18 Pa.C.S. §2709 (c) (1), and is punishable by imprisonment for not more than ninety days, id., §§106 (c) (2) and 1105. Harassment under the above statutory subsection is not a "serious crime" under the definition of Pa.R.D.B. 214 (i).
16. Respondent acknowledges that his conduct as set forth' in paragraphs 12 through 15 violated the following Rule of Professional Conduct:
a. RPC 8.4(b), which states that 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.
SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE
17. ODC and Respondent jointly recommend that the appropriate discipline for Respondent's admitted criminal conduct is a suspension for a period of two years with the suspension stayed in its entirety and Respondent placed on probation for a period of two and one-half years upon the following conditions:
I. COURT SUPERVISED TREATMENT AS DIRECTED
BY COUNTY PROBATION DEPARTMENT
1. Respondent shall attend -any and all alcohol treatment as directed by the Delaware County Probation Department as part of his sentence.
II. CONDITIONS OF PROBATION FOR FIRST YEAR
IN ADDITION TO CONDITION I ABOVE
1. Respondent shall abstain from using alcohol or any other mind altering chemical.
2. Respondent shall attend Alcohol Anonymous meetings at least five (5) times a week.
3. Respondent shall obtain a sponsor in Alcohol Anonymous and maintain weekly contact with that sponsor.
4. A sobriety monitor shall be appointed to monitor Respondent in accordance with Disciplinary Board Rule §89.293 (c) .
5. Respondent shall furnish his sobriety monitor with his Alcohol Anonymous sponsor's name, address and phone number.
6. Respondent shall establish his weekly attendance at Alcohol Anonymous meetings by providing written verification to the Board on a Board-approved form.
7. Respondent shall file with the Secretary of the Board quarterly written reports.
8. With the sobriety monitor, Respondent shall:
a. meet at least twice a month;
b. maintain weekly phone contact; and
c. cooperate fully.
9. The appointed sobriety monitor shall:
a. monitor Respondent's compliance with the terms and conditions of the order imposing probation;
b. assist Respondent in arranging any necessary professional or substance abuse treatment;
c. meet with Respondent at least twice a month and maintain weekly telephone contact with Respondent;
d. maintain . direct monthly contact with Respondent's Alcohol Anonymous sponsor;
e. file with the Secretary of the Board quarterly reports; and
f. immediately report to the Secretary of the Board any violations by the Respondent of. the terms and conditions of the probation.
III. CONDITIONS OF PROBATION AFTER-FIRST YEAR
IN ADDITION TO CONDITION I ABOVE
1. Respondent shall abstain from using alcohol or any other mind altering chemical.
2. Respondent shall regularly attend Alcohol Anonymous meetings.
* * * * * * * *
18. Respondent hereby consents to the above discipline being imposed upon him by. the Disciplinary Board of the Supreme Court of Pennsylvania.
19. Attached to this Petition is Respondent's executed Affidavit required by Pa.R.D.E. 215(d), stating that he consents to the recommended discipline and including the mandatory acknowledgments contained in Pa.R.D.E. 215(d)(1) through (4) .
20. In support of ODC and Respondent's joint recommendations it is respectfully submitted that there are a number of mitigating circumstances as follows:
a. Respondent notified the Office of Disciplinary Counsel of his conviction for the misdemeanors in Delaware County as he was required to do.
b. Respondent has cooperated with the Office of Disciplinary Counsel in connection with its investigation in this matter.
c. Respondent's conduct was not related to the representation .of a client.
d. Respondent's conduct occurred as a direct result of a relapse in his disease of alcoholism.
e. Respondent had previously received mitigation for misconduct that was directly related to his disease of alcoholism and should receive mitigation again in connection with the instant misconduct, which is also directly related to the alcoholism.
f. Respondent had a relapse in his disease that was caused by a severe domestic dispute involving the separation from his spouse and a custody battle in connection with his children.
g. Respondent has sought and obtained help and counseling from Dr. Steven Samuel, who filed a report that was received by the Office of Disciplinary Counsel on August 27, 2009. (A
copy of Dr. Samuel's report is attached hereto.)
h. As stated in Dr. Samuel's report, Respondent was introduced to the drug cocaine by a female acquaintance with " whom he had a sexual encounter and it only occurred once and would not be repeated.
i. Respondent advised Petitioner that his domestic problems are behind him, he has been sober since September 28, 2008 (a little over one year) , he is attending AA meetings on a daily basis, and he is extremely remorseful for his conduct.
21. There exists the following aggravating circumstances:
a. Respondent has a prior record of discipline for his first criminal conviction for DUI, which consisted of a private reprimand followed by two years of alcohol probation, which Respondent successfully completed.
22. The recommended discipline of a suspension stayed in its entirety with a term of probation and alcohol-related conditions is within the range of discipline for attorneys convicted of driving under the influence and DUI-related offenses who have a prior record of discipline and who demonstrated a causal connection between their alcoholism and the misconduct.
In Office of Disciplinary Counsel v. Thomas James Bonavita, 184 DB 2 007, No. 1340 Disciplinary Docket No. 3 (2009), the Supreme Court approved a consent discipline of a suspension stayed in its entirety and a period of probation for two years with various alcohol-related conditions based upon two separate convictions for driving under the influence, one of which involved the summary offense of careless driving, and the other involving the summary offense of driving while operator's license under suspension, which is punishable by imprisonment of not less than 90 days. In that case, the respondent was serving a three-year suspension based upon' a conviction for indecent assault; and had received a private reprimand and informal admonition for misconduct involving client-related matters. The Court made the stayed suspension effective upon an " Order granting the respondent's reinstatement to the practice of law.
In other DUI-conviction matters, the Supreme Court has imposed stayed suspensions with probationary terms. In In re Anonymous No. 79 DB 1994, 32 Pa. D.&C.4th 104 (1995), for example, the respondent was convicted of driving under the influence of alcohol. He acknowledged a history of alcoholism as well as previous attempts at sobriety by attending AA meetings prior to his DUI conviction.- The Disciplinary Board determined that Braun mitigation was appropriate. In addition, the Board noted the respondent's history of prior discipline - a three-month suspension for a weapons conviction - as well as three arrests, all of which involved the respondent's substance abuse, occurring prior to the respondent's bar admission. The Board ultimately recommended that the respondent be suspended for a period of three years stayed with a three-year period of probation with numerous alcohol-related conditions. See also In re Anonymous No. 114 DB 1990, 19 Pa. D.&C.4th 197 (1993) (respondent's fifth DUI charge, one of which involved a hit and run accident and giving a false report to the police, for which the respondent was incarcerated; respondent sober for three years at the time of the hearing; Braun mitigation also applicable; respondent was suspended for three years, stayed in its entirety, and placed on probation for three years subject to numerous alcohol-related conditions) .
WHEREFORE, Petitioner and Respondent respectfully request pursuant to Pa.R.D.E. 215(e) and 215(g) , the three-member panel of the Disciplinary Board review and approve this Joint-Petition in Support of Discipline on Consent in which it is recommended that Respondent receive a two-year" suspension stayed in its entirety and probation for a period of two and one-half years with conditions, as enumerated above.
Respectfully and jointly submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
CHIEF DISCIPLINARY COUNSEL
Carmen C. Nasuti
Disciplinary Counsel
Gary C. Hoicker, Esquire
Respondent
Stuart L. Haimowitz, Esquire
Counsel for Respondent
BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OP PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
GARY C. HOICKER, Respondent
No. 1482 Disciplinary Docket No. 3
No. 53 DB 2009
Atty. Reg. No. 30252
(Philadelphia)
VERIFICATION
The statements contained in the foregoing Joint Petition In Support of Discipline on Consent Under Rule 215(d), Pa.R.D.E., are true and correct to the best of our knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.
Carmen C. Nasuti
Disciplinary Counsel
Gary C. Hoicker, Esquire
Respondent
Stuart L. Haimowitz, Esquire
Counsel for Respondent
BEFORE THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
GARY C. HOICKER,
Respondent
No. 1482 Disciplinary Docket No. 3
No. 53 DB 2009
Atty. Reg. No. 30252
(Philadelphia)
AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.
Respondent, Gary C. Hoicker, hereby states that he consents to the imposition of a two-year suspension stayed in its entirety and probation for a period of two and one-half years on the conditions enumerated above, as jointly recommended by Petitioner, Office of Disciplinary Counsel, and Respondent in the Joint Petition In Support Of Discipline On Consent, and further states that:
1. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has consulted with counsel in connection with the decision to consent to discipline;
2. He is aware that there is presently pending a proceeding involving allegations that he has been guilty of misconduct as set forth in the Joint Petition;
3. He acknowledges that the material facts set forth in the Joint Petition are true; and
4. He consents because he knows that if charges predicated upon the matter under investigation were filed, he could not successfully defend against them.
Gary C. Hoicker, Esquire
Respondent
Sworn to and subscribed
before me this __ day of _____________, 2009.
_____________
Notary Public
IN THE SUPREME COURT OF PENNSYLVANIA
In the Matter of GARY C. HOICKER
No. 1482 Disciplinary Docket No. 3
Board File Nos. C1 -09-315 and C1-09-323
(Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0007878-2008; Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0007690-2008)
Attorney Registration No. 30252 (Philadelphia)
ORDER
PER CURIAM:
AND NOW, this 1sl day of July, 2009, Gary C. Hoicker having been convicted in the Court of Common Pleas of Delaware County of the crimes of driving under the influence of alcohol or a controlled substance and recklessly endangering another person and having been convicted in the Court of Common Pleas of Montgomery County of the crime of harassment, it is
ORDERED that this matter be referred to the Disciplinary Board pursuant to Rule 214(f)(1) and (g), Pa.R.D.E.
A True Copy Patricia Nicola
As of: July 1, 2009
Attest:
Chief Clerk
Supreme Court of Pennsylvania